Hickman v. Taylor, 329 U.S.

495
Facts A tugboat sank killing five crew members. Hickman (P) brought this wrongful death lawsuit as representative of one of the deceased against Taylor et al. (Ds). The four survivors testified at a public hearing before the United States Steamboat Inspectors and their testimony was recorded and made available to all of the parties. The defendants conducted their own interviews of the survivors and others having information regarding the accident. The defendants answered all interrogatories except for a summary of statements obtained in the course of their own interviews. The defendants contended that the requested summary pertained to privileged matter obtained in preparation for litigation and was therefore privileged. Hickman objected and the district court held that the requested information was not privileged and ordered the defendants to produce it. Counsel for the defendants refused to comply and were held in contempt. The Court of Appeals reversed and the Supreme Court granted certiorari. Issues Is information prepared or obtained by counsel in preparation for litigation after a claim has arisen protected by the attorney-client privilege? Held No. Information prepared or obtained by counsel in preparation for litigation after a claim has arisen is not protected by the attorney-client privilege and is not protected from discovery on that basis. Discovery of written materials obtained or prepared by opposing counsel in preparation for possible litigation may not be had unless the party seeking discovery can establish that relevant and non-privileged facts remain hidden in an attorneys file, and where production of those facts is essential to the preparation of the partys case. 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. In this case however there was no ground for the exercise of that discretion in favor of the plaintiff. The District Court erred in holding the 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.