Not even the most liberal of discovery theories can justify unwarranted inquiries into the files and the mental impressions of an attorney.
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.
Are materials taken in anticipation of litigation and containing the personal recollections and thoughts of counsel protected from discovery?
The appellate court reversed, describing the materials as privileged work product under Fed. R. Civ. P. 26. On further appeal, the Court found Fed. R. Civ. P. 26 was inapplicable because no depositions were involved with the interrogatories. However, petitioner's request, made without purported necessity or justification, for materials that were prepared by respondents' attorney in the course of legal representation fell outside of the arena of discovery and contravened public policy.