[S]uch requests called "for privileged matter obtained in preparation for litigation" and constituted "an attempt to obtain indirectly counsel's private files." . . . [A]nswering these requests "would involve practically turning over not only the complete files, but also the telephone record and, almost, the thoughts of counsel."
Hickman v. Taylor
Defendant's tugboat sank for unknown reason, killing five of the nine employees aboard. Defendant hired Fortenbaugh to defend them against potential suits. Four of the five suits were settled, with plaintiff being the representative for the fifth deceased.
Plaintiff filed 39 interrogatories, the 38th of which asked whether defendant took any of its crew members' statements and to provide exact copies thereof if so. Plaintiff admitted that statements had been taken but declined to disclose the contents thereof, claiming that they were privileged.
District court ordered Fortenbaugh to produce the statements, he refused, and the court ordered him imprisoned until he complied, which was stayed pending an appeal.
Is the opposing party's interviews with witnesses in anticipation of the case privileged information?
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The attorney-client privilege does not extend to information which an attorney secures from a witness while acting for his client in anticipation of litigation. Nor does this privilege concern the memoranda, briefs, communications and other writings prepared by counsel for his own use in prosecuting his client's case; and it is equally unrelated to writings which reflect an attorney's mental impression, conclusion, opinions or legal theories.
Such information can be discovered by asking defendant about the events or by asking the witnesses themselves. There is no public policy reason for securing private conversations of the opposing party. It would demoralize lawyers and poorly serve justice.
It is not privileged information, but it simply falls outside of what is allowed in discovery under the work product doctrine.
: This favors neither plaintiffs nor defendants. Law will always be about an adversary proceeding requiring wits. It would be the most demoralizing practice conceivable for lawyers.
Now codified in Rule 26(b)(3).