US SUPREME COURT DECISIONS

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.

Held:

1. In these circumstances, Rules 26, 33 and 34 of the Federal Rules of Civil Procedure do not require the production as of right of oral and written statements of witnesses secured by an adverse party's counsel in the course of preparation for possible litigation after a claim has arisen. Pp. 329 U. S. 509-514.

2. Since plaintiff addressed simple interrogatories to adverse parties, did not direct them to such parties or their counsel by way of deposition under Rule 26, and it does not appear that he filed a chanrobles.com-red

Page 329 U. S. 496

motion under Rule 34 for a court order directing the production of the documents in question, he was proceeding primarily under Rule 33, relating to interrogatories to parties. P. 329 U. S. 504.

3. Rules 33 and 34 are limited to parties, thereby excluding their counsel or agents. P. 329 U. S. 504.

4. Rule 33 did not permit the plaintiff to obtain, as adjuncts to interrogatories addressed to defendants, memoranda and statements prepared by their counsel after a claim had arisen. P. 329 U. S. 504.

5. The District Court erred in holding defendants in contempt for failure to produce that which was in the possession of their counsel, and in holding their counsel in contempt for failure to produce that which he could not be compelled to produce under either Rule 33 or Rule 34. P. 329 U. S. 505.

6. Memoranda, statements, and mental impressions prepared or obtained from interviews with witnesses by counsel in preparing for litigation after a claim has arisen are not within the attorney-client privilege, and are not protected from discovery on that basis. P. 329 U. S. 508.

7. The general policy against invading the privacy of an attorney's course of preparation is so essential to an orderly working of our system of legal procedure that a burden rests on the one who would invade that privacy to establish adequate reasons to justify production through a subpoena or court order. P. 329 U. S. 512.

8. Rule 30(b) gives the trial judge the requisite discretion to make a judgment as to whether discovery should be allowed as to written statements secured from witnesses; but, in this case, there was no ground for the exercise of that discretion in favor of plaintiff. P. 329 U. S. 512.

9. Under the circumstances of this case, no showing of necessity could be made which would justify requiring the production of oral statements made by witnesses to defendants' counsel, whether presently in the form of his mental impressions or in the form of memoranda. P. 329 U. S. 512.

153 F.2d 212 affirmed.

A District Court adjudged respondents guilty of contempt for failure to produce, in response to interrogatories, copies of certain written statements and memoranda prepared by counsel in connection with pending litigation. 4 F.R.D. 479. The Circuit Court of Appeals reversed. 153 F.2d 212. This Court granted certiorari. 328 U.S. 876. Affirmed, p. 329 U. S. 514. chanrobles.com-red

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