329 U.S. 495 (1949)
On February 7, 1943, the tug J. M. Taylor sank while engaged in helping to tow a car float of the Baltimore & Ohio Railroad across the Delaware River at Philadelphia.1 The accident was apparently unusual in nature, the cause of it still being unknown. Five of the nine crew members were drowned.2 Three days later the tug owners and the underwriters employed a law firm, of which respondent Fortenbaugh is a member, to defend them against potential suits by representatives of the deceased crew members and to sue the railroad for damages to the tug.3
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.4 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 29.5 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.6 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.7 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.8
One year later, petitioner filed 39 interrogatories directed to the tug owners. The 38th interrogatory read: State whether any statements of the members of the crews of the Tugs J. M. Taylor and Philadelphia or of any other vessel were taken in connection with the towing of the car float and the sinking of the Tug John M. Taylor. Attach hereto exact copies of all such statements if in writing, and if oral, set forth in detail the exact provisions of any such oral statements or reports.9 Supplemental interrogatories asked whether any oral or written statements, records, reports or other memoranda had been made concerning any matter relative to the towing operation, the sinking of the tug, the salvaging and repair of the tug, and the death of the deceased.10
The tug owners, through Fortenbaugh, answered all of the interrogatories except No. 38 and the supplemental ones just described. While admitting that statements of the survivors had been taken, they declined to summarize or set forth the contents.11 They did so on the ground that such requests called for privileged matter obtained in preparation for litigation and constituted an attempt to obtain indirectly counsel's private files.12 In connection with the hearing on these objections, Fortenbaugh made a written statement and gave an informal oral deposition explaining the circumstances under which he had taken the statements.13 The District Court for the Eastern District of Pennsylvania, sitting en banc, held that the requested matters were not privileged. The court then decreed that the tug owners and Fortenbaugh forthwith answer Plaintiff's 38th interrogatory and supplementary interrogatories.14 It also ordered production of all written statements of witnesses obtained by Mr. Fortenbaugh. The court required a statement in substance of any fact concerning this case which Defendants learned through oral statements made by witnesses to Mr. Fortenbaugh. It directed production of Mr. Fortenbaugh's memoranda containing statements of fact by witnesses or submission of these memoranda to the Court for determination of those portions which should be revealed to Plaintiff. Upon their refusal, the court adjudged them in contempt and ordered them imprisoned until they complied.15
The Third Circuit Court of Appeals, also sitting en banc, reversed the judgment of the District Court.16 The importance of the problem, which has engendered a great divergence of views among district courts, led the Supreme Court to grant certiorari.17
Whether the Federal Rules of Civil Procedure permit a party to obtain through discovery oral and written statements of witnesses or other information secured by an adverse party's counsel in the course of preparation for possible litigation after a claim has arisen?18
The deposition-discovery rules create integrated procedural devices. Their basic thrust is to permit inquiry into materials collected by an adverse party's counsel in preparation for litigation only upon a showing of necessity. The rules do not contemplate production of an attorney's work product without adequate justification.19
No. Petitioner served interrogatories seeking statements and memoranda that Fortenbaugh prepared after the February 7, 1943 sinking of the tug J. M. Taylor. Yet petitioner made no demonstration that the information was unavailable through the public hearing testimony or direct witness interviews. Petitioner offered no claim that denial would cause hardship or injustice.20
The Federal Rules of Civil Procedure do not permit discovery of such materials as of right.21
Related opinions on this issue
Joined by Justice Frankfurter
Justice Jackson concurred to stress the damaging effects the requested discovery would have on the legal profession itself.22 He observed that the interrogatory would force counsel to create and deliver written accounts of oral witness statements that do not exist in that form.23 Such a requirement would turn lawyers into witnesses vulnerable to repeated impeachment disputes over the accuracy of their recollections and inferences.24
Jackson emphasized that a common law trial remains an adversary proceeding and that discovery was never intended to let one side borrow the wits of opposing counsel.25 He concluded that the rules do not authorize this practice as a matter of right. Any production of signed statements would require a proper showing of good cause under Rule 34 rather than a naked demand.26
Whether the attorney-client privilege protects such materials from discovery?27
The attorney-client privilege protects only confidential communications made by a client to an attorney. It does not extend to information an attorney secures from third-party witnesses or to memoranda, briefs, and writings reflecting an attorney's mental impressions prepared for the client's case.28
No. Fortenbaugh obtained the signed statements from the four survivors and memoranda from other persons after the March 4, 1943 public hearing. None of these materials constituted communications from the tug-owner clients themselves. The materials included Fortenbaugh's own recollections and impressions rather than client confidences.29
The attorney-client privilege does not protect the materials from discovery.30
Whether production of an attorney's memoranda and mental impressions requires a showing of necessity or good cause?31
A party seeking production of an attorney's work product must establish adequate reasons to justify invading the privacy of counsel's preparation. The general policy against such intrusion is essential to the orderly working of the legal system and is implicit in the discovery rules.32
Yes. The District Court ordered Fortenbaugh to produce all written statements and to state facts learned through oral interviews. This order issued without any showing by petitioner of necessity or any demonstration that denial would prejudice preparation of the case. The survivors' public testimony was already available and petitioner could interview the witnesses directly.33
Production of an attorney's memoranda and mental impressions requires a showing of necessity or good cause.34
Related opinions on this issue
Joined by Justice Frankfurter
Justice Jackson agreed that production of oral statements would create grave dangers of inaccuracy and untrustworthiness.35 Any account delivered by counsel would consist of the lawyer's own language and inferences rather than the witness's exact words.36 Forcing delivery of such statements would compel lawyers to take the witness stand in self-defense to protect their credibility, a role the profession strongly discourages.37
He noted that even signed witness statements are not ordinarily evidence and that production should occur only upon a showing of good cause under Rule 34, such as impossibility of access to the witness, rather than as an unqualified right.38 Jackson concluded that the district court's order lacked any such demonstration and therefore could not stand.39