Hickman and the Doctrine's Purpose

The Work-Product Threshold

Hickman and the Doctrine's Purpose

Suppose a lawyer privately interviews the witnesses to an accident and writes down what each of them says. May the other side demand those notes just by asking? Discovery is extremely broad, so the instinct may be to say yes.¹ Rule 26(b)(3)(A) says no, at least ordinarily. A party may not discover documents and tangible things prepared in anticipation of litigation or for trial by or for another party or its representative, and the rule then lists the conditions under which those materials may be discovered anyway.² The doctrine behind that rule took shape in Hickman v. Taylor, which asked how far a party may inquire into witness statements and other information that an adverse party's counsel secured while preparing for possible litigation after a claim has arisen.³

The facts were these. A tugboat accident killed five crew members and left four survivors. On March 4, 1943, the Steamboat Inspectors held a public hearing at which the survivors were examined, and their testimony was recorded and made available to all interested parties. Soon afterward, Fortenbaugh, the lawyer for the tug owners, privately interviewed the survivors and took statements from them with an eye toward the anticipated litigation; the survivors signed on March 29. He also interviewed other people who might know something and sometimes made memoranda of what they told him. By then, representatives of two of the dead crew members had already been in touch with him.⁴

Four of the five death claims settled without a lawsuit. The fifth claimant sued under the Jones Act and, a year later, served 39 interrogatories on the tug owners. The 38th asked whether any statements of crew members had been taken.⁵ The district court found that no recognizable privilege was involved and ordered production.⁶ When the owners and Fortenbaugh refused, a contempt conviction followed.⁷ The Third Circuit, sitting en banc, reversed, reasoning that the information was the work product of the lawyer and therefore privileged from discovery. The Supreme Court granted certiorari because district courts had shown a great divergence of views on the problem.⁸ The Court then affirmed unanimously, but on a rather different analysis from the one either lower court had used.⁹

That analysis did not turn on privilege or relevance. The demand failed even though the subject matter was neither privileged nor irrelevant as the rules use those terms. The plaintiff had simply tried, without any claimed necessity or justification, to obtain written statements, private memoranda, and personal recollections that an adverse party's counsel had prepared or formed in the course of his legal duties. That attempt fell outside the arena of discovery and contravened the public policy underlying the orderly prosecution and defense of legal claims. Not even the most liberal theory of discovery justifies unwarranted inquiries into an attorney's files and mental impressions.¹⁰

That framing is why work product is a protection or immunity against discovery rather than a privilege. A party who shows sufficient need can pierce it, whereas the attorney-client privilege is not breached simply because someone asserts a compelling need for the information. In that respect the work-product doctrine is the weaker of the two.¹¹

The Court's reason for the protection was practical. In performing his duties, a lawyer must work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel. He assembles information, sifts the relevant from the irrelevant, prepares legal theories, and plans strategy, and the Court called that the historical and necessary way lawyers promote justice and protect their clients' interests.¹² A modern commentator spells out what would be lost without that privacy. Opposing counsel could psych out an adversary's strategy by learning whom she interviewed and what issues she pursued. Factual information in trial-preparation materials is hard to separate from the thought processes of the lawyer who developed them, so routine discovery could expose legal theories, evaluations of witnesses, and plans for trial and settlement. And lawyers would grow reluctant to keep written records, an outcome hardly calculated to improve the quality of representation.¹³

Even so, the Court did not treat counsel's files as untouchable. The policy against invading the privacy of an attorney's preparation is so well recognized, and so essential to the orderly working of our procedure, that a burden rests on the one who would invade it to establish adequate reasons for production. The Court found that burden implicit in the rules as constituted. The Hickman plaintiff never tried to carry it. The record held only a naked, general demand for the materials as of right, together with the district court's finding that no recognizable privilege was involved. That was insufficient, and the court should have sustained the refusal.¹⁴

The sinking left two trails of witness material. The survivors' testimony before the Inspectors was taken in public, recorded, and made available to all interested parties. Fortenbaugh's statements and memoranda were different: one side's lawyer gathered them privately, with the anticipated litigation in view.¹⁵ Those are the materials the Court held could not be had for the asking.

The Court later described the doctrine's core in United States v. Nobles. It shelters the mental processes of the attorney and gives him a privileged area in which to analyze and prepare his client's case. The Court also called the doctrine intensely practical, grounded in the realities of litigation. One of those realities is that attorneys often must rely on investigators and other agents, so the doctrine protects material prepared by agents as well as by the attorney, and its concerns do not disappear once trial has begun.¹⁶ The point matters because Hickman's own facts involved a lawyer's interviews. The current rule answers the question in its text. It defines work product as material prepared by or for a party or its representative and names the party's attorney, consultant, surety, indemnitor, insurer, or agent.¹⁷ The immunity therefore does not turn on whether an attorney obtained the document; it extends to material obtained by anyone representing a party, including the party's insurer.¹⁸