Zealous Advocacy
Where does the notion that an attorney has a duty of "zealous advocacy" come from? Judge Steve Briggs gives us the answer.
Fed.R.Civ.P. 37
(2) Appropriate Court. A motion for an order to a party must be made in the court where the action is pending. A motion for an order to a nonparty must be made in the court where the discovery is or will be taken.
(3) Specific Motions.
(A) To Compel Disclosure. If a party fails to make a disclosure required by Rule 26(a), any other party may move to compel disclosure and for appropriate sanctions.
(B) To Compel a Discovery Response. A party seeking discovery may move for an order compelling an answer, designation, production, or inspection. This motion may be made if:
(i) a deponent fails to answer a question asked under Rule 30 or 31;
(ii) a corporation or other entity fails to make a designation under Rule 30(b)(6) or 31(a)(4);
(iii) a party fails to answer an interrogatory submitted under Rule 33; or
(iv) a party fails to produce documents or fails to respond that inspection will be permitted -- or fails to permit inspection -- as requested under Rule 34.
(C) Related to a Deposition. When taking an oral deposition, the party asking a question may complete or adjourn the examination before moving for an order.
(4) Evasive or Incomplete Disclosure, Answer, or Response. For purposes of this subdivision (a), an evasive or incomplete disclosure, answer, or response must be treated as a failure to disclose, answer, or respond.
(5) Payment of Expenses; Protective Orders.
(A) If the Motion Is Granted (or Disclosure or Discovery Is Provided After Filing). If the motion is granted--or if the disclosure or requested discovery is provided after the motion was filed--the court must, after giving an opportunity to be heard, require the party or deponent whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees. But the court must not order this payment if:
(i) the movant filed the motion before attempting in good faith to obtain the disclosure or discovery without court action;
(ii) the opposing party's nondisclosure, response, or objection was substantially justified; or
(iii) other circumstances make an award of expenses unjust.
(B) If the Motion Is Denied. If the motion is denied, the court may issue any protective order authorized under Rule 26(c) and must, after giving an opportunity to be heard, require the movant, the attorney filing the motion, or both to pay the party or deponent who opposed the motion its reasonable expenses incurred in opposing the motion, including attorney's fees. But the court must not order this payment if the motion was substantially justified or other circumstances make an award of expenses unjust.
(C) If the Motion Is Granted in Part and Denied in Part. If the motion is granted in part and denied in part, the court may issue any protective order authorized under Rule 26(c) and may, after giving an opportunity to be heard, apportion the reasonable expenses for the motion.
(b) Failure to Comply with a Court Order.
(1) Sanctions Sought in the District Where the Deposition Is Taken. If the court where the discovery is taken orders a deponent to be sworn or to answer a question and the deponent fails to obey, the failure may be treated as contempt of court. If a deposition-related motion is transferred to the court where the action is pending, and that court orders a deponent to be sworn or to answer a question and the deponent fails to obey, the failure may be treated as contempt of either the court where the discovery is taken or the court where the action is pending.
(2) Sanctions Sought in the District Where the Action Is Pending.
(A) For Not Obeying a Discovery Order. If a party or a party's officer, director, or managing agent--or a witness designated under Rule 30(b)(6) or 31(a)(4)--fails to obey an order to provide or permit discovery, including an order under Rule 26(f), 35, or 37(a), the court where the action is pending may issue further just orders. They may include the following:
(i) directing that the matters embraced in the order or other designated facts be taken as established for purposes of the action, as the prevailing party claims;
(ii) prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence;
(iii) striking pleadings in whole or in part;
(iv) staying further proceedings until the order is obeyed;
(v) dismissing the action or proceeding in whole or in part;
(vi) rendering a default judgment against the disobedient party; or
(vii) treating as contempt of court the failure to obey any order except an order to submit to a physical or mental examination.
(B) For Not Producing a Person for Examination. If a party fails to comply with an order under Rule 35(a) requiring it to produce another person for examination, the court may issue any of the orders listed in Rule 37(b)(2)(A)(i)-(vi), unless the disobedient party shows that it cannot produce the other person.
(C) Payment of Expenses. Instead of or in addition to the orders above, the court must order the disobedient party, the attorney advising that party, or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust.
(c) Failure to Disclose, to Supplement an Earlier Response, or to Admit.
(1) Failure to Disclose or Supplement. If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless. In addition to or instead of this sanction, the court, on motion and after giving an opportunity to be heard:
(A) may order payment of the reasonable expenses, including attorney's fees, caused by the failure;
(B) may inform the jury of the party's failure; and
(C) may impose other appropriate sanctions, including any of the orders listed in Rule 37(b)(2)(A)(i)-(vi).
(2) Failure to Admit. If a party fails to admit what is requested under Rule 36 and if the requesting party later proves a document to be genuine or the matter true, the requesting party may move that the party who failed to admit pay the reasonable expenses, including attorney's fees, incurred in making that proof. The court must so order unless:
(A) the request was held objectionable under Rule 36(a);
(B) the admission sought was of no substantial importance;
(C) the party failing to admit had a reasonable ground to believe that it might prevail on the matter; or
(D) there was other good reason for the failure to admit.
(d) Party's Failure to Attend Its Own Deposition, Serve Answers to Interrogatories, or Respond to a Request for Inspection.
(1) In General.
(A) Motion; Grounds for Sanctions. The court where the action is pending may, on motion, order sanctions if:
(i) a party or a party's officer, director, or managing agent--or a person designated under Rule 30(b)(6) or 31(a)(4)--fails, after being served with proper notice, to appear for that person's deposition; or
(ii) a party, after being properly served with interrogatories under Rule 33 or a request for inspection under Rule 34, fails to serve its answers, objections, or written response.
(B) Certification. A motion for sanctions for failing to answer or respond must include a certification that the movant has in good faith conferred or attempted to confer with the party failing to act in an effort to obtain the answer or response without court action.
(2) Unacceptable Excuse for Failing to Act. A failure described in Rule 37(d)(1)(A) is not excused on the ground that the discovery sought was objectionable, unless the party failing to act has a pending motion for a protective order under Rule 26(c).
(3) Types of Sanctions. Sanctions may include any of the orders listed in Rule 37(b)(2)(A)(i)-(vi). Instead of or in addition to these sanctions, the court must require the party failing to act, the attorney advising that party, or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust.
(e) Failure to Preserve Electronically Stored Information. If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court:
(1) upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice; or
(2) only upon finding that the party acted with the intent to deprive another party of the information's use in the litigation may:
(A) presume that the lost information was unfavorable to the party;
(B) instruct the jury that it may or must presume the information was unfavorable to the party; or
(C) dismiss the action or enter a default judgment.
(f) Failure to Participate in Framing a Discovery Plan. If a party or its attorney fails to participate in good faith in developing and submitting a proposed discovery plan as required by Rule 26(f), the court may, after giving an opportunity to be heard, require that party or attorney to pay to any other party the reasonable expenses, including attorney's fees, caused by the failure.
KeyCite Yellow Flag - Negative Treatment
Superseded by Statute as Stated in State ex rel. Cincinnati Enquirer v. Ohio Department of Commerce, Division of State Fire Marshal, Ohio App. 10 Dist., September 30, 2019
67 S.Ct. 385
Supreme Court of the United States
No. 47.
|
Argued Nov. 13, 1946.
|
Decided Jan. 13, 1947.
Synopsis
Action by George E. Hickman, as administrator of the Estate of Norman E. Hickman, deceased, against John M. Taylor and George Anderson individually and trading as Taylor & Anderson Towing and Lighterage Company for death of plaintiff’s decedent. There was a judgment of the Circuit Court of Appeals, 153 F.2d 212, reversing a judgment of the district court, 4 F.R.D. 479, adjudging the defendants and their attorney Samuel B. Fortenbaugh, Jr., guilty of contempt for refusal to answer an interrogatory, and the plaintiff brings certiorari.
Affirmed.
On Writ of Certiorari to the United States Circuit Court of Appeals for the Third Circuit.
West Headnotes (16)
|
Federal Civil ProcedureAdverse party’s case, matters relating to |
|
|
170AFederal Civil Procedure 170AXDepositions and Discovery 170AX(A)In General 170Ak1272Scope 170Ak1273Adverse party’s case, matters relating to |
|
|
Public policy supports reasonable and necessary inquiries into a person’s files and records, including those resulting from the professional activities of an attorney, but the right to examination in a particular case must be carefully determined. Fed.Rules Civ.Proc. rules 26, 33, 34, 45, 28 U.S.C.A. |
|
Federal Civil ProcedureDeposition Federal Civil ProcedureDocuments, discovery and production of |
|
|
170AFederal Civil Procedure 170AXDepositions and Discovery 170AX(D)Written Interrogatories to Parties 170AX(D)1In General 170Ak1474Other Remedy, Availability or Prior Use of 170Ak1476Deposition 170AFederal Civil Procedure 170AXDepositions and Discovery 170AX(D)Written Interrogatories to Parties 170AX(D)1In General 170Ak1474Other Remedy, Availability or Prior Use of 170Ak1477Documents, discovery and production of |
|
|
Where plaintiff addressed simple interrogatories solely to adverse parties as contemplated by rule 33, which does not permit interrogatories to be addressed to counsel of adverse parties, and there were no interrogatories by way of deposition under rule 26 or motion for an order directing the production of documents under rule 34, which is limited to parties, plaintiff was proceeding primarily under rule 33. Fed.Rules Civ.Proc. rules 26, 33, 34, 28 U.S.C.A. |
|
Federal Civil ProcedureDeposition Federal Civil ProcedureOther remedy, availability or prior use of |
|
|
170AFederal Civil Procedure 170AXDepositions and Discovery 170AX(D)Written Interrogatories to Parties 170AX(D)1In General 170Ak1474Other Remedy, Availability or Prior Use of 170Ak1476Deposition 170AFederal Civil Procedure 170AXDepositions and Discovery 170AX(E)Discovery and Production of Documents and Other Tangible Things 170AX(E)1In General 170Ak1554Other remedy, availability or prior use of |
|
|
Memoranda or statements gathered by counsel for defendants after claim had arisen could not be obtained by plaintiff by means of interrogatories addressed to defendants under rule 33, nor by means of an order under rule 34, but the only recourse was to take the deposition of counsel under rule 26 and to serve a subpoena duces tecum on him in conformity with rule 45. Fed.Rules Civ.Proc. rules 26, 33, 34, 45, 28 U.S.C.A. |
|
Federal CourtsPersons entitled to seek review or assert arguments; parties |
|
|
170BFederal Courts 170BXVISupreme Court 170BXVI(E)Proceedings 170Bk3200Persons entitled to seek review or assert arguments; parties (Formerly 170Bk452, 106k383(1)) |
|
|
Where both lower courts had passed on whether plaintiff was entitled to access to written and oral statements or reports gathered by defendants’ counsel after claim had arisen, although plaintiff had not invoked the proper remedy, and the Supreme Court had granted certiorari because of the importance of the question and the divergent views of district courts, the procedural irregularity would be disregarded as immaterial. Federal Rules of Civil Procedure, rules 26, 33, 34, 45, 28 U.S.C.A. following section 723c. |
|
170AFederal Civil Procedure 170AXDepositions and Discovery 170AX(A)In General 170Ak1264Actions in which remedy is available |
|
|
Discovery is available in all types of cases at the behest of any party, individual or corporate. Fed.Rules Civ.Proc. rules 26, 33, 34, 45, 28 U.S.C.A. |
|
170AFederal Civil Procedure 170AXDepositions and Discovery 170AX(A)In General 170Ak1261In general |
|
|
The deposition-discovery rules must be broadly and liberally construed. Fed.Rules Civ.Proc. rules 26, 33, 34, 45, 28 U.S.C.A. |
|
Federal Civil ProcedureAdverse party’s case, matters relating to |
|
|
170AFederal Civil Procedure 170AXDepositions and Discovery 170AX(A)In General 170Ak1272Scope 170Ak1273Adverse party’s case, matters relating to |
|
|
Mutual knowledge of all relevant facts gathered by parties to litigation is essential, and where it is essential to the preparation of one’s case either party may, in good faith, compel the other to disclose whatever relevant facts he has in his possession, if not otherwise privileged, without regard to the time-honored defense of “fishing expedition”. Fed.Rules Civ.Proc. rules 26, 26(b), 30(b)(d), 31(d), 33, 34, 45, 28 U.S.C.A. |
|
Federal Civil ProcedureWork Product Privilege; Trial Preparation Materials |
|
|
170AFederal Civil Procedure 170AXDepositions and Discovery 170AX(E)Discovery and Production of Documents and Other Tangible Things 170AX(E)3Particular Subject Matters 170Ak1604Work Product Privilege; Trial Preparation Materials 170Ak1604(1)In general (Formerly 170Ak1273) |
|
|
Memoranda, statements or reports gathered or made by counsel for defendants after claim had arisen were not protected from discovery on the basis that they are privileged. Fed.Rules Civ.Proc. rules 26, 26(b), 30(b)(d), 31(d), 33, 34, 45, 28 U.S.C.A. |
|
Federal Civil ProcedureWork Product Privilege; Trial Preparation Materials |
|
|
170AFederal Civil Procedure 170AXDepositions and Discovery 170AX(E)Discovery and Production of Documents and Other Tangible Things 170AX(E)3Particular Subject Matters 170Ak1604Work Product Privilege; Trial Preparation Materials 170Ak1604(1)In general (Formerly 170Ak1273) |
|
|
Information which an attorney secures from a witness while acting for his client in anticipation of litigation is not privileged, and neither are memoranda, briefs, communications or other writings prepared by counsel for his own use in prosecuting his client’s case or writings which reflect attorney’s mental impressions, conclusions, opinions or legal theories. |
|
157Evidence 157IIPresumptions 157k60Innocence; legality |
|
|
The presumption is that answers to interrogatories were complete and that they were honestly made. |
|
Federal Civil ProcedureProceedings to obtain Federal Civil ProcedureAdverse party’s case, matters relating to |
|
|
170AFederal Civil Procedure 170AXDepositions and Discovery 170AX(A)In General 170Ak1271Proceedings to obtain 170AFederal Civil Procedure 170AXDepositions and Discovery 170AX(A)In General 170Ak1272Scope 170Ak1273Adverse party’s case, matters relating to |
|
|
Where all the details regarding accident involved had been fully covered by answers to thirty-eight interrogatories and plaintiff had access to the public testimony of witnesses taken by federal inspectors, as well as to the witnesses, and there was no showing that access to statements obtained from witnesses by counsel for defendants or to other memoranda, statements or reports of counsel was necessary, plaintiff was not entitled to access to such matters. Fed.Rules Civ.Proc. rules 26, 26(b), 30(b)(d), 31(d), 33, 34, 45, 28 U.S.C.A. |
|
Attorney and ClientTenure of office in general Federal Civil ProcedureAdverse party’s case, matters relating to |
|
|
45Attorney and Client 45IThe Office of Attorney 45I(C)Discipline 45k34Tenure of office in general 170AFederal Civil Procedure 170AXDepositions and Discovery 170AX(A)In General 170Ak1272Scope 170Ak1273Adverse party’s case, matters relating to |
|
|
A lawyer is an officer of the court, bound to work for the advancement of justice while faithfully protecting the rightful interests of his clients and entitled to freedom from unnecessary intrusion by opposing parties and their counsel. Fed.Rules Civ.Proc., rules 26, 26(b), 30(b)(d), 31(d), 33, 34, 45, 28 U.S.C.A. |
|
Federal Civil ProcedureAdverse party’s case, matters relating to |
|
|
170AFederal Civil Procedure 170AXDepositions and Discovery 170AX(A)In General 170Ak1272Scope 170Ak1273Adverse party’s case, matters relating to (Formerly 170Ak273) |
|
|
One seeking to compel attorney of adverse party to disclose data collected in client’s behalf has burden of establishing adequate reasons therefor. Fed.Rules Civ.Proc. rules 26, 26(b), 30(b)(d), 31(d), 33, 34, 45, 28 U.S.C.A. |
|
170AFederal Civil Procedure 170AXDepositions and Discovery 170AX(A)In General 170Ak1267Discretion of Court 170Ak1267.1In general (Formerly 170Ak1267) |
|
|
Whether discovery of written statements secured from witnesses by counsel of adverse party should be allowed rests in discretion of trial judge upon a proper showing, but where there was no showing of necessity therefor there was no occasion for the exercise of discretion even though the statements were not privileged. Fed.Rules Civ.Proc. rules 26, 26(b), 30(b), (d), 31(d), 33, 34, 45, 28 U.S.C.A. |
|
170AFederal Civil Procedure 170AXDepositions and Discovery 170AX(A)In General 170Ak1272Scope 170Ak1272.1In general (Formerly 170Ak1272) |
|
|
Plaintiff was not entitled to disclosure of oral statements made by witnesses to attorney for defendant after claim arose, in view of full answers to interrogatories covering all phases of accident involved and other sources of information available to plaintiff. Fed.Rules Civ.Proc. rules 26, 33, 34, 45, 28 U.S.C.A. |
|
Federal Civil ProcedureAdverse party’s case, matters relating to |
|
|
170AFederal Civil Procedure 170AXDepositions and Discovery 170AX(A)In General 170Ak1272Scope 170Ak1273Adverse party’s case, matters relating to |
|
|
Where numerous interrogatories covering all phases of accident involved had been fully answered by defendants and other sources of information were available, that oral statements obtained from witnesses by defendants’ attorney would enable plaintiff’s attorney to prepare for cross-examination of such witnesses was insufficient reason for compelling disclosure of such matters. Fed.Rules Civ.Proc. rules 26, 33, 34, 45, 28 U.S.C.A. |
Attorneys and Law Firms
**387 Mr. *497 Abraham E. Freedman, of Philadelphia, Pa., for petitioner.
Messrs. William I. Radner, of Washington, D.C., and Samuel B. Fortenbaugh, Jr., of Philadelphia, Pa., for respondents.
Opinion
Mr. Justice MURPHY delivered the opinion of the Court.
[1] This case presents an important problem under the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, as to the extent to which a party may inquire into oral and written statements of witnesses, or other information, secured by an adverse party’s counsel in the course of preparation for possible litigation after a claim has arisen. Examination into a person’s files and records, including those resulting from the professional activities of an attorney, must be judged with care. It is not without reason that various safeguards have been established to preclude unwarranted excursions into the privacy of a man’s work. At the same time, public policy supports reasonable and necessary inquiries. Properly to balance these competing interests is a delicate and difficult task.
*498 On February 7, 1943, the tug ‘J. M. Taylor’ sank while engaged in helping to tow a car float of the Baltimore & Ohio Railroad across the Delaware River at Philadelphia. The accident was apparently unusual in nature, the cause of it still being unknown. Five of the nine crew members were drowned. Three days later the tug owners and the underwriters employed a law firm, of which respondent Fortenbaugh is a member, to defend them against potential suits by representatives of the deceased crew members and to sue the railroad for damages to the tug.
A public hearing was held on March 4, 1943, before the United States Steamboat Inspectors, at which the four survivors were examined. This testimony was recorded and made available to all interested parties. Shortly thereafter, Fortenbaugh privately interviewed the survivors and took statements from them with an eye toward the anticipated litigation; the survivors signed these statements on March 29. Fortenbaugh also interviewed other persons believed to have some information relating to the accident and in some cases he made memoranda of what they told him. At the time when Fortenbaugh secured the statements of the survivors, representatives of two of the deceased crew members had been in communication with him. Ultimately claims were presented by representatives of all five of the deceased; four of the claims, however, were settled without litigation. The fifth claimant, petitioner herein, brought suit in a federal court under the Jones Act on November 26, 1943, naming as defendants the two tug owners, individually and as partners, and the railroad.
One year later, petitioner filed 39 interrogatories directed to the tug owners. The 38th interrogatory read: ‘State whether any statements of the members of the crews of the Tugs ‘J. M. Taylor’ and ‘Philadelphia’ or of any other vessel were taken in connection with the towing of the car float and the sinking of the Tug ‘John M. Taylor’. *499
Attach hereto exact copies of all such statements if in writing, and if oral, set forth in detail the exact provisions of any such oral statements or reports.’
Supplemental interrogatories asked whether any oral or written statements, records, reports or other memoranda had been made **388 concerning any matter relative to the towing operation, the sinking of the tug, the salvaging and repair of the tug, and the death of the deceased. If the answer was in the affirmative, the tug owners were then requested to set forth the nature of all such records, reports, statements or other memoranda.
The tug owners, through Fortenbaugh, answered all of the interrogatories except No. 38 and the supplemental ones just described. While admitting that statements of the survivors had been taken, they declined to summarize or set forth the contents. They did so on the ground that such requests called ‘for privileged matter obtained in preparation for litigation’ and constituted ‘an attempt to obtain indirectly counsel’s private files.’ It was claimed that answering these requests ‘would involve practically turning over not only the complete files, but also the telephone records and, almost, the thoughts of counsel.’
In connection with the hearing on these objections, Fortenbaugh made a written statement and gave an informal oral deposition explaining the circumstances under which he had taken the statements. But he was not expressly asked in the deposition to produce the statements. The District Court for the Eastern District of Pennsylvania, sitting en banc, held that the requested matters were not privileged. 4 F.R.D. 479. The court then decreed that the tug owners and Fortenbaugh, as counsel and agent for the tug owners forthwith ‘Answer Plaintiff’s 38th interrogatory and supplemental interrogatories; produce all written statements of witnesses obtained by Mr. Fortenbaugh, as counsel and agent for Defendants; *500 state in substance any fact concerning this case which Defendants learned through oral statements made by witnesses to Mr. Fortenbaugh whether or not included in his private memoranda and produce Mr. Fortenbaugh’s memoranda containing statements of fact by witnesses or to submit these memoranda to the Court for determination of those portions which should be revealed to Plaintiff.’ Upon their refusal, the court adjudged them in contempt and ordered them imprisoned until they complied.
The Third Circuit Court of Appeals, also sitting en banc, reversed the judgment of the District Court. 153 F.2d 212. It held that the information here sought was part of the ‘work product of the lawyer’ and hence privileged from discovery under the Federal Rules of Civil Procedure. The importance of the problem, which has engendered a great divergence of views among district courts,1 led us to grant certiorari. 328 U.S. 876, 66 S.Ct. 1337.
|
See cases collected by Advisory Committee on Rules for Civil Procedure in its Report of Proposed Amendments (June, 1946), pp. 40—47; 5 F.R.D. 433, 457—460. See also 2 Moore’s Federal Practice (1945 Cum.Supp.), s 26.12, pp. 155—159; Holtzoff, ‘Instruments of Discovery under Federal Rules of Civil Procedure,’ 41 Mich.L.Rev. 205, 210—212; Pike and Willis, ‘Federal Discovery in Operation,’ 7 Univ. of Chicago L.Rev. 297, 301—307. |
The pre-trial deposition-discovery mechanism established by Rules 26 to 37 is one of the most significant innovations of the Federal Rules of Civil Procedure. Under the prior federal practice, the pre-trial functions of notice-giving issue-formulation and fact-revelation were performed primarily and inadequately by the pleadings.2 Inquiry into the issues and the facts before trial was *501 narrowly confined and was often cumbersome in method.3 The new rules, however, restrict the pleadings to the task of general notice-giving and invest the deposition-discovery process with a vital role in the preparation for trial. The various instruments of discovery now serve (1) as a device, along with the pre-trial hearing under Rule 16, to narrow **389 and clarify the basic issues between the parties, and (2) as a device for ascertaining the facts, or information as to the existence or whereabouts of facts, relative to those issues. Thus civil trials in the federal courts no longer need be carried on in the dark. The way is now clear, consistent with recognized privileges, for the parties to obtain the fullest possible knowledge of the issues and facts before trial.4
|
‘The great weakness of pleading as a means for developing and presenting issues of fact for trial lay in its total lack of any means for testing the factual basis for the pleader’s allegations and denials.’ Sunderland, ‘The Theory and Practice of Pre-Trial Procedure,’ 36 Mich.L.Rev. 215, 216. See also Ragland, Discovery Before Trial (1932), ch. I. |
|
2 Moore’s Federal Proctice (1938), s 26.02, pp. 2445, 2455. |
|
Pike and Willis, ‘The New Federal Deposition-Discovery Procedure,’ 38 Col.L.Rev. 1179, 1436; Pike, ‘The New Federal Deposition-Discovery Procedure and the Rules of Evidence,’ 34 Ill.L.Rev. 1. |
There is an initial question as to which of the deposition-discovery rules is involved in this case. Petitioner, in filing his interrogatories, thought that he was proceeding under Rule 33. That rule provides that a party may serve upon any adverse party written interrogatories to be answered by the party served.5 The District Court proceeded *502 on the same assumption in its opinion, although its order to produce and its contempt order stated that both Rules 33 and 34 were involved. Rule 34 establishes a procedure whereby, upon motion of any party showing good cause therefor and upon notice to all other parties, the court may order any party to produce and permit the inspection and copying or photographing of any designated documents, etc., not privileged, which constitute or contain evidence material to any matter involved in the action and which are in his possession, custody or control.6
|
Rule 33 reads: ‘Any party may serve upon any adverse party written interrogatories to be answered by the party served or, if the party served is a public or private corporation or a partnership or association, by any officer thereof competent to testify in its behalf. The interrogatories shall be answered separately and fully in writing under oath. The answers shall be signed by the person making them; and the party upon whom the interrogatories have been served shall serve a copy of the answers on the party submitting the interrogatories within 15 days after the delivery of the interrogatories, unless the court, on motion and notice and for good cause shown, enlarges or shortens the time. Objections to any interrogatories may be presented to the court within 10 days after service thereof, with notice as in case of a motion; and answers shall be deferred until the objections are determined, which shall be at as early a time as is practicable. No party may, without leave of court, serve more than one set of interrogatories to be answered by the same party.’ |
|
Rule 34 provides: ‘Upon motion of any party showing good cause therefor and upon notice to all other parties, the court in which an action is pending may (1) order any party to produce and permit the inspection and copying or photographing, by or on behalf of the moving party, of any designated documents, papers, books, accounts, letters, photographs, objects, or tangible things, not privileged, which constitute or contain evidence material to any matter involved in the action and which are in his possession, custody, or control; or (2) order any party to permit entry upon designated land or other property in his possession or control for the purpose of inspecting, measuring, surveying, or photographing the property or any designated relevant object or operation thereon. The order shall specify the time, place, and manner of making the inspection and taking the copies and photographs and may prescribe such terms and conditions as are just.’ |
The Circuit Court of Appeals, however, felt that Rule 26 was the crucial one. Petitioner, it said, was proceeding by interrogatories and, in connection with those interrogatories, wanted copies of memoranda and statements secured from witnesses. While the court believed that Rule 33 was involved, at least as to the defending tug owners, it stated that this rule could not be used as the basis for condemning Fortenbaugh’s failure to disclose or produce *503 the memoranda and statements, since the rule applies only to interrogatories addressed to adverse parties, not to their agents or counsel. And Rule 34 was said to be inapplicable since petitioner was not trying to see an original document and to copy or photograph it, within the scope of that rule. The court then concluded that Rule 26 must be the one really involved. That provides that the testimony of any person, whether a party or not, may be **390 taken by any party by deposition upon oral examination or written interrogatories for the purpose of discovery or for use as evidence; and that the deponent may be examined regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether relating to the claim or defense of the examining party or of any other party, including the existence, description, nature, custody, condition and location of any books, documents or other tangible things.7
|
The relevant portions of Rule 26 provide as follows: ‘(a) When Depositions May be Taken. By leave of court after jurisdiction has been obtained over any defendant or over property which is the subject of the action or without such leave after an answer has been served, the testimony of any person, whether a party or not, may be taken at the instance of any party by deposition upon oral examination or written interrogatories for the purpose of discovery or for use as evidence in the action or for both purposes. The attendance of witnesses may be compelled by the use of subpoena as provided in Rule 45. Depositions shall be taken only in accordance with these rules. The deposition of a person confined in prison may be taken only by leave of court on such terms as the court prescribes. (b) Scope of Examination. Unless otherwise ordered by the court as provided by Rule 30(b) or (d), the deponent may be examined regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether relating to the claim or defense of the examining party or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of relevant facts.’ |
*504 [2] The matter is not without difficulty in light of the events that transpired below. We believe, however, that petitioner was proceeding primarily under Rule 33. He addressed simple interrogatories solely to the individual tug owners, the adverse parties, as contemplated by that rule. He did not, and could not under Rule 33, address such interrogatories to their counsel, Fortenbaugh. Nor did he direct these interrogatories either to the tug owners or to Fortenbaugh by way of deposition; Rule 26 thus could not come into operation. And it does not appear from the record that petitioner filed a motion under Rule 34 for a court order directing the producetion of the documents in question. Indeed, such an order could not have been entered as to Fortenbaugh since Rule 34, like Rule 33, is limited to parties to the proceeding, thereby excluding their counsel or agents.
[3] Thus to the extent that petitioner was seeking the production of the memoranda and statements gathered by Fortenbaugh in the course of his activities as counsel, petitioner misconceived his remedy. Rule 33 did not permit him to obtain such memoranda and statements as dejuncts to the interrogatories addressed to the individual tug owners. A party clearly cannot refuse to answer interrogatories on the ground that the information sought is solely within the knowledge of his attorney. But that is not this case. Here production was sought of documents prepared by a party’s attorney after the claim has arisen. Rule 33 does not make provision for such production, even when sought in connection with permissible interrogatories. Moreover, since petitioner was also foreclosed from securing them through an order under Rule 34, his only recourse was to take Fortenbaugh’s deposition under Rule 26 and to attempt to force Fortenbaugh to produce the materials by use of a subpoena duces tecum in accordance with Rule 45. Holtzoff, ‘Instruments of Discovery under the Federal Rules of Civil Procedure,’ *505 41 Mich.L.Rev. 205, 220. But despite petitioner’s faulty choice of action, the District Court entered an order, apparently under Rule 34, commanding the tug owners and Fortenbaugh, as their agent and counsel, to produce the materials in question. Their refusal led to the anomalous result of holding the tug owners in contempt for failure to produce that which was in the possession of their counsel and of holding Fortenbaugh in contempt for failure to produce that which he could not be compelled **391 to produce under either Rule 33 or Rule 34.
[4] But under the circumstances we deem it unnecessary and unwise to rest our decision upon this procedural irregularity, an irregularity which is not strongly urged upon us and which was disregarded in the two courts below. It matters little at this later stage whether Fortenbaugh fails to answer interrogatories filed under Rule 26 or under Rule 33 or whether he refuses to produce the memoranda and statements pursuant to a subpoena under Rule 45 or a court order under Rule 34. The deposition-discovery rules create integrated procedural devices. And the basic question at stake is whether any of those devices may be used to inquire into materials collected by an adverse party’s counsel in the course of preparation for possible litigation. The fact that the petitioner may have used the wrong method does not destroy the main thrust of his attempt. Nor does it relieve us of the responsibility of dealing with the problem raised by that attempt. It would be inconsistent with the liberal atmosphere surrounding these rules to insist that petitioner now go through the empty formality of pursuing the right procedural device only to reestablish precisely the same basic problem now confronting us. We do not mean to say, however, that there may not be situations in which the failure to proceed in accordance with a specific rule would be important or decisive. But in the present circumstances, for the purposes of this decision, the procedural *506 irregularity is not material. Having noted the proper procedure, we may accordingly turn our attention to the substance of the underlying problem.
In urging that he has a right to inquire into the materials secured and prepared by Fortenbaugh, petitioner emphasizes that the deposition-discovery portions of the Federal Rules of Civil Procedure are designed to enable the parties to discover the true facts and to compel their disclosure wherever they may be found. It is said that inquiry may be made under these rules, epitomized by Rule 26, as to any relevant matter which is not privileged; and since the discovery provisions are to be applied as broadly and liberally as possible, the privilege limitation must be restricted to its narrowest bounds. On the premise that the attorney-client privilege is the one involved in this case, petitioner argues that it must be strictly confined to confidential communications made by a client to his attorney. And since the materials here in issue were secured by Fortenbaugh from third persons rather than from his clients, the tug owners, the conclusion is reached that these materials are proper subjects for discovery under Rule 26.
As additional support for this result, petitioner claims that to prohibit discovery under these circumstances would give a corporate defendant a tremendous advantage in a suit by an individual plaintiff. Thus in a suit by an injured employee against a railroad or in a suit by an insured person against an insurance company the corporate defendant could pull a dark veil of secrecy over all the petinent facts it can collect after the claim arises merely on the assertion that such facts were gathered by its large staff of attorneys and claim agents. At the same time, the individual plaintiff, who often has direct knowledge of the matter in issue and has no counsel until some time after his claim arises could be compelled to disclose all the intimate details of his case. By endowing with *507 immunity from disclosure all that a lawyer discovers in the course of his duties, it is said, the rights of individual litigants in such cases are drained of vitality and the lawsuit becomes more of a battle of deception than a search for truth.
[5] But framing the problem in terms of assisting individual plaintiffs in their suits against corporate defendants is unsatisfactory. Discovery concededly may work to the disadvantage as well as to the advantage of individual plaintiffs. Discovery, in other words, is not a one-way proposition. It is available in all types of cases at the behest of any party, individual or corporate, plaintiff or defendant. The problem thus far transcends the situation **392 confronting this petitioner. And we must view that problem in light of the limitless situations where the particular kind of discovery sought by petitioner might be used.
[6] [7] We agree, of course, that the deposition-discovery rules are to be accorded a broad and liberal treatment. No longer can the time-honored cry of ‘fishing expedition’ serve to preclude a party from inquiring into the facts underlying his opponent’s case.8 Mutual knowledge of all the relevant facts gathered by both parties is essential to proper litigation. To that end, either party may compel the other to disgorge whatever facts he has in his possession. The deposition-discovery procedure simply advances the stage at which the disclosure can be compelled from the time of trial to the period preceding it, thus reducing the possibility of surprise. But discovery, like all matters of procedure, has ultimate and necessary boundaries. As indicated by Rules 30(b) and (d) and 31(d), limitations inevitably arise when it can be shown *508 that the examination is being conducted in bad faith or in such a manner as to annoy, embarrass or oppress the person subject to the inquiry. And as Rule 26(b) provides, further limitations come into existence when the inquiry touches upon the irrelevant or encroaches upon the recognized domains of privilege.
|
‘One of the chief arguments against the ‘fishing expedition’ objection is the idea that discovery is mutual—that while a party may have to disclose his case, he can at the same time tie his opponent down to a definite position.’ Pike and Willis, ‘Federal Discovery in Operation,’ 7 Univ. of Chicago L.Rev. 297, 303. |
[8] [9] We also agree that the memoranda, statements and mental impressions in issue in this case fall outside the scope of the attorney-client privilege and hence are not protected from discovery on that basis. It is unnecessary here to delineate the content and scope of that privilege as recognized in the federal courts. For present purposes, it suffices to note that the protective cloak of this 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 impressions, conclusions, opinions or legal theories.
[10] [11] But the impropriety of invoking that privilege does not provide an answer to the problem before us. Petitioner has made more than an ordinary request for relevant, non-privileged facts in the possession of his adversaries or their counsel. He has sought discovery as of right of oral and written statements of witnesses whose identity is well known and whose availability to petitioner appears unimpaired. He has sought production of these matters after making the most searching inquiries of his opponents as to the circumstances surrounding the fatal accident, which inquiries were sworn to have been answered to the best of their information and belief. Interrogatories were directed toward all the events prior to, during and subsequent to the sinking of the tug. Full and honest answers to such broad inquiries would necessarily have included all *509 pertinent information gleaned by Fortenbaugh through his interviews with the witnesses. Petitioner makes no suggestion, and we cannot assume, that the tug owners or Fortenbaugh were incomplete or dishonest in the framing of their answers. In addition, petitioner was free to examine the public testimony of the witnesses taken before the United States Steamboat Inspectors. We are thus dealing with an attempt to secure the production of written statements and mental impressions contained in the files and the mind of the attorney Fortenbaugh without any showing of necessity or any indication or claim that denial of such production would unduly prejudice the preparation of petitioner’s case or cause him any hardship or injustice. For aught that appears, the essence of what petitioner seeks either has been revealed to him already **393 through the interrogatories or is readily available to him direct from the witnesses for the asking.
The District Court, after hearing objections to petitioner’s request, commanded Fortenbaugh to produce all written statements of witnesses and to state in substance any facts learned through oral statements of witnesses to him. Fortenbaugh was to submit any memoranda he had made of the oral statements so that the court might determine what portions should be revealed to petitioner. All of this was ordered without any showing by petitioner, or any requirement that he make a proper showing, of the necessity for the production of any of this material or any demonstration that denial of production would cause hardship or injustice. The court simply ordered production on the theory that the facts sought were material and were not privileged as constituting attorney-client communications.
In our opinion, neither Rule 26 nor any other rule dealing with discovery contemplates production under such circumstances. That is not because the subject matter is privileged or irrelevant, as those concepts are used in these *510 rules.9 Here is simply an attempt, without purported necessity or justification, to secure written statements, private memoranda and personal recollections prepared or formed by an adverse party’s counsel in the course of his legal duties. As such, it falls outside the arena of discovery and contravenes the public policy underlying the orderly prosecution and defense of legal claims. Not even the most liberal of discovery theories can justify unwarranted inquiries into the files and the mental impressions of an attorney.
|
The English courts have developed the concept of privilege to include all documents prepared by or for counsel with a view to litigation. ‘All documents which are called into existence for the purpose—but not necessarily the sole purpose—of assisting the deponent or his legal advisers in any actual or anticipated litigation are privileged from production. * * * Thus all proofs, briefs, draft pleadings, etc., are privileged; but not counsel’s indorsement on the outside of his brief * * *, nor any deposition or notes of evidence given publicly in open Court. * * * So are all papers prepared by any agent of the party bona fide for the use of his solicitor for the purposes of the action, whether in fact so used or not. * * * Reports by a company’s servant, if made in the ordinary course of routine, are not privileged, even though it is desirable that the solicitor should have them and they are subsequently sent to him; but if the solicitor has requested that such documents shall always be prepared for his use and this was one of the reasons why they were prepared, they need not by disclosed.’ Odgers on Pleading and Practice (12th ed., 1939), p. 264. See Order 31, rule 1, of the Rules of the Supreme Court, 1883, set forth in The Annual Practice, 1945, p. 519, and the discussion following that rule. For a compilation of the English cases on the matter see 8 Wigmore on Evidence (3d ed., 1940), s 2319, pp. 618—622, notes. |
[12] Historically, a lawyer is an officer of the court and is bound to work for the advancement of justice while faithfully protecting the rightful interests of his clients. In performing his various duties, however, it is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel. *511 Proper preparation of a client’s case demands that he assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference. That is the historical and the necessary way in which lawyers act within the framework of our system of jurisprudence to promote justice and to protect their clients’ interests. This work is reflected, of course, in interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and countless other tangible and intangible ways—aptly though roughly termed by the Circuit Court of Appeals in this case (153 F.2d 212, 223) as the ‘Work product of the lawyer.’ Were such materials open to opposing counsel on mere demand, much of what is now put down in writing would remain unwritten. An attorney’s thoughts, heretofore inviolate, **394 would not be his own. Inefficiency, unfairness and sharp practices would inevitably develop in the giving of legal advice and in the preparation of cases for trial. The effect on the legal profession would be demoralizing. And the interests of the clients and the cause of justice would be poorly served.
[13] We do not mean to say that all written materials obtained or prepared by an adversary’s counsel with an eye toward litigation are necessarily free from discovery in all cases. Where relevant and non-privileged facts remain hidden in an attorney’s file and where production of those facts is essential to the preparation of one’s case, discovery may properly be had. Such written statements and documents might, under certain circumstances, be admissible in evidence or give clues as to the existence or location of relevant facts. Or they might be useful for purposes of impeachment or corroboration. And production might be justified where the witnesses are no longer available or can be reached only with difficulty. Were production of written statements and documents to be precluded under *512 such circumstances, the liberal ideals of the deposition-discovery portions of the Federal Rules of Civil Procedure would be stripped of much of their meaning. But the general policy against invading the privacy of an attorney’s course of preparation is so well recognized and 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. That burden, we believe, is necessarily implicit in the rules as now constituted.10
|
Rule 34 is explicit in its requirements that a party show good cause before obtaining a court order directing another party to produce documents. See Report of Proposed Amendments by Advisory Committee on Rules for Civil Procedure (June, 1946); 5 F.R.D. 433. |
[14] Rule 30(b), as presently written, 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 the instant case there was no room for that discretion to operate in favor of the petitioner. No attempt was made to establish any reason why Fortenbaugh should be forced to produce the written statements. There was only a naked, general demand for these materials as of right and a finding by the District Court that no recognizable privilege was involved. That was insufficient to justify discovery under these circumstances and the court should have sustained the refusal of the tug owners and Fortenbaugh to produce.
[15] But as to oral statements made by witnesses to Fortenbaugh, whether presently in the form of his mental impressions or memoranda, we do not believe that any showing of necessity can be made under the circumstances of this case so as to justify production. Under ordinary conditions, forcing an attorney to repeat or write out all that witnesses have told him and to deliver the account *513 to his adversary gives rise to grave dangers of inaccuracy and untrustworthiness. No legitimate purpose is served by such production. The practice forces the attorney to testify as to what he remembers or what he saw fit to write down regarding witnesses’ remarks. Such testimony could not qualify as evidence; and to use it for impeachment or corroborative purposes would make the attorney much less an officer of the court and much more an ordinary witness. The standards of the profession would thereby suffer.
[16] Denial of production of this nature does not mean that any material, non-privileged facts can be hidden from the petitioner in this case. He need not be unduly hindered in the preparation of his case, in the discovery of facts or in his anticipation of his opponents’ position. Searching interrogatories directed to Fortenbaugh and the tug owners, production of written documents and statements upon a proper showing and direct interviews with the witnesses themselves all serve to reveal the facts in Fortenbaugh’s possession to **395 the fullest possible extent consistent with public policy. Petitioner’s counsel frankly admits that he wants the oral statements only to help prepare himself to examine witnesses and to make sure that he has overlooked nothing. That is insufficient under the circumstances to permit him an exception to the policy underlying the privacy of Fortenbaugh’s professional activities. If there should be a rare situation justifying production of these matters, petitioner’s case is not of that type.
We fully appreciate the wide-spread controversy among the members of the legal profession over the problem raised by this case.11 It is a problem that rests on what *514 has been one of the most hazy frontiers of the discovery process. But until some rule or statute definitely prescribes otherwise, we are not justified in permitting discovery in a situation of this nature as a matter of unqualified right. When Rule 26 and the other discovery rules were adopted, this Court and the members of the bar in general certainly did not believe or contemplate that all the files and mental processes of lawyers were thereby opened to the free scrutiny of their adversaries. And we refuse to interpret the rules at this time so as to reach so harsh and unwarranted a result.
|
See Report of Proposed Amendments by Advisory Committee on Rules for Civil Procedure (June, 1946), pp. 44—47; 5 F.R.D. 433, 459, 460; Discovery Procedure Symposium before the 1946 Conference of the Third United States Circuit Court of Appeals, 5 F.R.D. 403; Armstrong, ‘Report of the Advisory Committee on Federal Rules of Civil Procedure Recommending Amendments,’ 5 F.R.D. 339, 353—357. |
We therefore affirm the judgment of the Circuit Court of Appeals.
Affirmed.
Mr. Justice JACKSON, concurring.
The narrow question in this case concerns only one of thirty-nine interrogatories which defendants and their counsel refused to answer. As there was persistence in refusal after the court ordered them to answer it, counsel and clients were committed to jail by the district court until they should purge themselves of contempt.
The interrogatory asked whether statements were taken from the crews of the tugs involved in the accident, or of any other vessel, and demanded ‘Attach hereto exact copies of all such statements if in writing, and if oral, set forth in detail the exact provisions of any such oral statements or reports.’ The question is simply whether such a demand is authorized by the rules relating to various aspects of ‘discovery’.
The primary effect of the practice advocated here would be on the legal profession itself. But it too often is overlooked *515 that the lawyer and the law office are indispensable parts of our administration of justice. Law-abiding people can go nowhere else to learn the ever changing and constantly multiplying rules by which they must behave and to obtain redress for their wrongs. The welfare and tone of the legal profession is therefore of prime consequence to society, which would feel the consequences of such a practice as petitioner urges secondarily but certainly.
‘Discovery’ is one of the working tools of the legal profession. It traces back to the equity bill of discovery in English Chancery practice and seems to have had a forerunner in Continental practice. See Ragland, Discovery Before Trial (1932) 13-16. Since 1848 when the draftsmen of New York’s Code of Procedure recognized the importance of a better system of discovery, the impetus to extend and expand discovery, as well as the opposition to it, has come from within the Bar itself. It happens in this case that it is the plaintiff’s attorney who demands such unprecedented latitude of discovery and, strangely enough, amicus briefs in his support have been filed by several labor unions representing plaintiffs as a class. It is the history of the movement for broader discovery, however, that in actual experience the chief opposition to its extension has come from lawyers **396 who specialize in representing plaintiffs because defendants have made liberal use of it to force plaintiffs to disclose their cases in advance. See Report of the Commission on the Administration of Justice in New York State (1934) 330, 331; Ragland, Discovery Before Trial (1932) 35, 36. Discovery is a two-edged sword and we cannot decide this problem on any doctrine of extending help to one class of litigants.
It seems clear and long has been recognized that discovery should provide a party access to anything that is evidence in his case. Cf. Report of Commission on the Administration of Justice in New York State (1934) 41, 42. *516 It seems equally clear that discovery should not nullify the privilege of confidential communication between attorney and client. But those principles give us no real assistance here because what is being sought is neither evidence nor is it a privileged communication between attorney and client.
To consider first the most extreme aspect of the requirement in litigation here, we find it calls upon counsel, if he has had any conversations with any of the crews of the vessels in question or of any other, to ‘set forth in detail the exact provision of any such oral statements or reports.’ Thus the demand is not for the production of a transcript in existence but calls for the creation of a written statement not in being. But the statement by counsel of what a witness told him is not evidence when written plaintiff could not introduce it to prove his case. What, then, is the purpose sought to be served by demanding this of adverse counsel?
Counsel for the petitioner candidly said on argument that he wanted this information to help prepare himself to examine witnesses, to make sure he overlooked nothing. He bases his claim to it in his brief on the view that the Rules were to do away with the old situation where a law suit developed into ‘a battle of wits between counsel.’ But a common law trial is and always should be an adversary proceeding. Discovery was hardly intended to enable a learned profession to perform its functions either without wits or on wits borrowed from the adversary.
The real purpose and the probable effect of the practice ordered by the district court would be to put trials on a level even lower than a ‘battle of wits.’ I can conceive of no practice more demoralizing to the Bar than to require a lawyer to write out and deliver to his adversary an account of what witnesses have told him. Even if his recollection were perfect, the statement would be his language *517 permeated with his inferences. Every one who has tried it knows that it is almost impossible so fairly to record the expressions and emphasis of a witness that when he testifies in the environment of the court and under the influence of the leading question there will not be departures in some respects. Whenever the testimony of the witness would differ from the ‘exact’ statement the lawyer had delivered, the lawyer’s statement would be whipped out to impeach the witness. Counsel producing his adversary’s ‘inexact’ statement could lose nothing by saying, ‘Here is a contradiction, gentlemen of the jury. I do not know whether it is my adversary or his witness who is not telling the truth, but one is not.’ Of course, if this practice were adopted, that scene would be repeated over and over again. The lawyer who delivers such statements often would find himself branded a deceiver afraid to take the stand to support his own version of the witness’s conversation with him, or else he will have to go on the stand to defend his own credibility—perhaps against that of his chief witness, or possibly even his client.
Every lawyer dislikes to take the witness stand and will do so only for grave reasons. This is partly because it is not his role; he is almost invariably a poor witness. But he steps out of professional character to do it. He regrets it; the profession discourages it. But the practice advocated here is one which would force him to be a witness, not as to what he has seen or done but as to other witnesses’ stories, and not because he wants to do so but in self-defense.
And what is the lawyer to do who has interviewed one whom he believes to be a **397 biased, lying or hostile witness to get his unfavorable statements and know what to meet? He must record and deliver such statements even though he would not vouch for the credibility of the witness by calling him. Perhaps the other side would not want to *518 call him either, but the attorney is open to the charge of suppressing evidence at the trial if he fails to call such a hostile witness even though he never regarded him as reliable or truthful.
Having been supplied the names of the witnesses, petitioner’s lawyer gives no reason why he cannot interview them himself. If an employee-witness refuses to tell his story, he, too, may be examined under the Rules. He may be compelled on discovery as fully as on the trial to disclose his version of the facts. But that is his own disclosure—it can be used to impeach him if he contradicts it and such a deposition is not useful to promote an unseemly disagreement between the witness and the counsel in the case.
It is true that the literal language of the Rules would admit of an interpretation that would sustain the district court’s order. So the literal language of the Act of Congress which makes ‘Any writing or record * * * made as a memorandum or record of any * * * occurrence, or event,’ 28 U.S.C.A. s 695, admissible as evidence, would have allowed the railroad company to put its engineer’s accident statements in evidence. Cf. Palmer v. Hoffman, 318 U.S. 109, 111, 63 S.Ct. 477, 479, 87 L.Ed. 645, 144 A.L.R. 719. But all such procedural measures have a background of custom and practice which was assumed by those who wrote and should be by those who apply them. We reviewed the background of the Act and the consequences on the trial of negligence cases of allowing railroads and others to put in their statements and thus to shield the crew from cross-examination. We said, ‘Such a major change which opens wide the door to avoidance of cross-examination should not be left to implication.’ 318 U.S. at page 114, 63 S.Ct. at page 481. We pointed out that there, as here, the ‘several hundred years of history behind the Act * * * indicate the nature of the reforms which it was designed to effect.’ *519 318 U.S. at page 115, 63 S.Ct. at page 481. We refused to apply it beyond that point. We should follow the same course of reasoning here. Certainly nothing in the tradition or practice of discovery up to the time of these Rules would have suggested that they would authorize such a practice as here proposed.
The question remains as to signed statements or those written by witnesses. Such statements are not evidence for the defendant. Palmer v. Hoffman, 318 U.S. 109, 63 S.Ct. 477. Nor should I think they ordinarily could be evidence for the plaintiff. But such a statement might be useful for impeachment of the witness who signed it, if he is called and if he departs from the statement. There might be circumstances, too, where impossibility or difficulty of access to the witness or his refusal to respond to requests for information or other facts would show that the interests of justice require that such statements be made available. Production of such statements are governed by Rule 34 and on ‘Showing good cause therefor’ the court may order their inspection, copying or photographing. No such application has here been made; the demand is made on the basis of right, not on showing of cause.
I agree to the affirmance of the judgment of the Circuit Court of Appeals which reversed the district court.
Mr. Justice FRANKFURTER joins in this opinion.
All Citations
329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451, 1947 A.M.C. 1, 34 O.O. 395
|
End of Document |
© 2020 Thomson Reuters. No claim to original U.S. Government Works. |
(4) Trial Preparation: Experts.
* * *
(C) Trial-Preparation Protection for Communications Between a Party's Attorney and Expert Witnesses. Rules 26(b)(3)(A) and (B) protect communications between the party's attorney and any witness required to provide a report under Rule 26(a)(2)(B), regardless of the form of the communications, except to the extent that the communications:
(i) relate to compensation for the expert's study or testimony;
(ii) identify facts or data that the party's attorney provided and that the expert considered in forming the opinions to be expressed; or
(iii) identify assumptions that the party's attorney provided and that the expert relied on in forming the opinions to be expressed.
Colorado Rule of Professional Responsibility Rule 1.6
(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation, or the disclosure is permitted by paragraph (b).
(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:
(1) to prevent reasonably certain death or substantial bodily harm;
(2) to reveal the client’s intention to commit a crime and the information necessary to prevent the crime;
(3) to prevent the client from committing a fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer’s services;
(4) to prevent, mitigate, or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client’s commission of a crime or fraud in furtherance of which the client has used the lawyer’s services;
(5) to secure legal advice about the lawyer’s compliance with these Rules, other law or a court order;
(6) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client;
(7) to detect and resolve conflicts of interest arising from the lawyer’s change of employment or from changes in the composition or ownership of a firm, but only if the revealed information is not protected by the attorney-client privilege and its revelation is not reasonably likely to otherwise materially prejudice the client; or
(8) to comply with other law or a court order.
(c) A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.
Colorado Court Rules
Colorado Rules of Professional Conduct
Client-lawyer Relationship
As amended through Rule Change 2018(6), effective April 12, 2018
A lawyer shall act with reasonable diligence and promptness in representing a client.
Cite as RPC 1.3
History. Entire Appendix repealed and readopted April 12, 2007, effective January 1, 2008.
Note:
COMMENT
[1] A lawyer should pursue a matter on behalf of a client despite opposition, obstruction or personal inconvenience to the lawyer, and take whatever lawful and ethical measures are required to vindicate a client's cause or endeavor. A lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client's behalf. A lawyer is not bound, however, to press for every advantage that might be realized for a client. For example, a lawyer may have authority to exercise professional discretion in determining the means by which a matter should be pursued. See Rule 1.2. The lawyer's duty to act with reasonable diligence does not require the use of offensive tactics or preclude the treating of all persons involved in the legal process with courtesy and respect.
[2] A lawyer's work load must be controlled so that each matter can be handled competently.
[3] Perhaps no professional shortcoming is more widely resented than procrastination. A client's interests often can be adversely affected by the passage of time or the change of conditions; in extreme instances, as when a lawyer overlooks a statute of limitations, the client's legal position may be destroyed. Even when the client's interests are not affected in substance, however, unreasonable delay can cause a client needless anxiety and undermine confidence in the lawyer's trustworthiness. A lawyer's duty to act with reasonable promptness, however, does not preclude the lawyer from agreeing to a reasonable request for a postponement that will not prejudice the lawyer's client.
[4] Unless the relationship is terminated as provided in Rule 1.16, a lawyer should carry through to conclusion all matters undertaken for a client. If a lawyer's employment is limited to a specific matter, the relationship terminates when the matter has been resolved. If a lawyer has served a client over a substantial period in a variety of matters, the client sometimes may assume that the lawyer will continue to serve on a continuing basis unless the lawyer gives notice of withdrawal. Doubt about whether a client-lawyer relationship still exists should be clarified by the lawyer, preferably in writing, so that the client will not mistakenly suppose the lawyer is looking after the client's affairs when the lawyer has ceased to do so. For example, if a lawyer has handled a judicial or administrative proceeding that produced a result adverse to the client and the lawyer and the client have not agreed that the lawyer will handle the matter on appeal, the lawyer must consult with the client about the possibility of appeal before relinquishing responsibility for the matter. See Rule 1.4(a)(2). Whether the lawyer is obligated to prosecute the appeal for the client depends on the scope of the representation the lawyer has agreed to provide to the client. See Rule 1.2.
[5] To prevent neglect of client matters in the event of a sole practitioner's death or disability, the duty of diligence may require that each sole practitioner prepare a plan, in conformity with applicable rules, that designates another competent lawyer to review client files, notify each client of the lawyer's death or disability, and determine whether there is a need for immediate protective action. Cf. Rule 28 of the American Bar Association Model Rules for Lawyer Disciplinary Enforcement (providing for court appointment of a lawyer to inventory files and take other protective action in absence of a plan providing for another lawyer to protect the interests of the clients of a deceased or disabled lawyer); C.R.C.P. 251.32(h).
Where does the notion that an attorney has a duty of "zealous advocacy" come from? Judge Steve Briggs gives us the answer.
Federal Rules of Evidence
The following provisions apply, in the circumstances set out, to disclosure of a communication or information covered by the attorney-client privilege or work-product protection.
(a) Disclosure Made in a Federal Proceeding or to a Federal Office or Agency; Scope of a Waiver. When the disclosure is made in a federal proceeding or to a federal office or agency and waives the attorney-client privilege or work-product protection, the waiver extends to an undisclosed communication or information in a federal or state proceeding only if:
(1) the waiver is intentional;
(2) the disclosed and undisclosed communications or information concern the same subject matter; and
(3) they ought in fairness to be considered together.
(b) Inadvertent Disclosure. When made in a federal proceeding or to a federal office or agency, the disclosure does not operate as a waiver in a federal or state proceeding if:
(1) the disclosure is inadvertent;
(2) the holder of the privilege or protection took reasonable steps to prevent disclosure; and
(3) the holder promptly took reasonable steps to rectify the error, including (if applicable) following Federal Rule of Civil Procedure 26(b)(5)(B).
(c) Disclosure Made in a State Proceeding. When the disclosure is made in a state proceeding and is not the subject of a state-court order concerning waiver, the disclosure does not operate as a waiver in a federal proceeding if the disclosure:
(1) would not be a waiver under this rule if it had been made in a federal proceeding; or
(2) is not a waiver under the law of the state where the disclosure occurred.
(d) Controlling Effect of a Court Order. A federal court may order that the privilege or protection is not waived by disclosure connected with the litigation pending before the court--in which event the disclosure is also not a waiver in any other federal or state proceeding.
(e) Controlling Effect of a Party Agreement. An agreement on the effect of disclosure in a federal proceeding is binding only on the parties to the agreement, unless it is incorporated into a court order.
(f) Controlling Effect of This Rule. Notwithstanding Rules 101 and 1101, this rule applies to state proceedings and to federal court-annexed and federal court-mandated arbitration proceedings, in the circumstances set out in the rule. And notwithstanding Rule 501, this rule applies even if state law provides the rule of decision.
(g) Definitions. In this rule:
(1) “attorney-client privilege” means the protection that applicable law provides for confidential attorney-client communications; and
(2) “work-product protection” means the protection that applicable law provides for tangible material (or its intangible equivalent) prepared in anticipation of litigation or for trial.
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
[insert caption here]
[PROPOSED] [STIPULATED AGREEMENT AND] ORDER UNDER FED. R. EVID. 502(d)
WHEREAS, [[[Plaintiff/Defendant] [PLAINTIFF'S NAME/DEFENDANT'S NAME] requests that this Court issue an order/Plaintiff [PLAINTIFF'S NAME] and Defendant [DEFENDANT'S NAME]] (together, "the Parties") jointly request that this Court issue an Order/this Court is issuing this Order] pursuant to Federal Rule of Evidence 502(d) to facilitate production and use of documents in this proceeding and to protect the [Parties/Defendant/Plaintiff] against waiver of any privileges or protections attaching to those documents;
WHEREAS, the [Parties/Defendant/Plaintiff] [and non-parties] may produce documents, answer interrogatories, and provide testimony and other information that may contain information covered by the attorney-client privilege or work product protection;
WHEREAS, absent an order from the Court, under certain circumstances, the production of privileged or protected information can operate as a waiver of any applicable privilege, protection, and/or immunity with respect to disclosure in this case and other Federal or State proceedings;
[WHEREAS, the [Parties/Defendant/Plaintiff] [wish/wishes] to expedite and facilitate the production of [a large volume of] electronic and hard copy data, information, and documents, and to protect against waiver as a result of the inadvertent [or intentional] disclosure of attorney-client privileged communications or work product materials;]
WHEREAS, Fed. R. Evid. 502(d) states that "[a] federal court may order that the privilege or protection is not waived by disclosure connected with the litigation pending before the court - in which event the disclosure is also not a waiver in any other federal or state proceeding;"
WHEREAS, this Court finds good cause to issue an order pursuant to Fed. R. Evid. 502(d)[./; and]
[WHEREAS, the Court shall retain jurisdiction over any matter or dispute arising from or relating to the implementation of this order.]
IT IS HEREBY [STIPULATED, AGREED, AND] ORDERED that, pursuant to Fed. R. Evid. 502(d), a Party's inadvertent [or intentional] disclosure or production of any documents or information in this proceeding shall not, for the purposes of this proceeding or any other proceeding in any other court, constitute a waiver by that Party of any privilege or protection applicable to those documents, including the attorney-client privilege, work product protection, and any other privilege or protection recognized by law.
The provisions of Fed. R. Evid. 502(b) are inapplicable to the production of documents or information under this Order. Specifically, there has been no waiver if a party discloses privileged or protected information [inadvertently or otherwise], regardless of whether the party took reasonable steps to prevent the disclosure or to rectify the error.
[Such [inadvertently produced] documents or information may be considered Confidential Information under the Confidentiality Agreement [(docket no. [NUMBER])] entered in this case on [DATE] ("Confidentiality Agreement").]
[Any party receiving any such [inadvertently produced] documents or information shall return them to the producing party, upon request, within [NUMBER] business days of receiving such request, delete any versions of the documents it maintains, and make no use of the information contained therein regardless of whether the receiving party agrees with the claim of privilege and/or work product protection. Nothing in this Order shall prevent a receiving party from challenging the privilege or protection asserted by the producing party by [following the procedure outlined in paragraph [NUMBER] of the Confidentiality Agreement/[ALTERNATIVE PROCEDURE]]. Pursuant to Fed. R. Civ. P. 26, the producing party bears the burden of establishing the privilege or protection of all such challenged documents. [The time periods herein can be extended if the parties agree in writing.]]
[Disclosure of information or documents by the receiving party before the producing party designates the information as protected shall not be deemed a violation of this Order.]
[SIGNATURE PAGE FOLLOWS]
[SO STIPULATED AND AGREED.
Dated: [DATE]
[CITY], [STATE]
[NAME OF LAW FIRM]
______________________________
[ATTORNEY'S NAME]
[ADDRESS]
[PHONE NUMBER]
[EMAIL ADDRESS]
Attorneys for [NAME OF PLAINTIFF(S)] [NAME OF LAW FIRM]
______________________________
[ATTORNEY'S NAME]
[ADDRESS]
[PHONE NUMBER]
[EMAIL ADDRESS]
Attorneys for [NAME OF DEFENDANT(S)]]
SO ORDERED.
Dated: [DATE]
[CITY], [STATE]
______________________________
[JUDGE'S NAME]
United States [District/Magistrate] Judge
From the Colorado Dispute Resolution Act—Colo.Rev.Stat. 13-22-301 et seq.
Colo.Rev.Stat. § 13-22-307. Confidentiality
(1) Dispute resolution meetings may be closed at the discretion of the mediator.
(2) Any party or the mediator or mediation organization in a mediation service proceeding or a dispute resolution proceeding shall not voluntarily disclose or through discovery or compulsory process be required to disclose any information concerning any mediation communication or any communication provided in confidence to the mediator or a mediation organization, unless and to the extent that:
(a) All parties to the dispute resolution proceeding and the mediator consent in writing; or
(b) The mediation communication reveals the intent to commit a felony, inflict bodily harm, or threaten the safety of a child under the age of eighteen years; or
(c) The mediation communication is required by statute to be made public; or
(d) Disclosure of the mediation communication is necessary and relevant to an action alleging willful or wanton misconduct of the mediator or mediation organization.
(3) Any mediation communication that is disclosed in violation of this section shall not be admitted into evidence in any judicial or administrative proceeding.
(4) Nothing in this section shall prevent the discovery or admissibility of any evidence that is otherwise discoverable, merely because the evidence was presented in the course of a mediation service proceeding or dispute resolution proceeding.
(5) Nothing in this section shall prevent the gathering of information for research or educational purposes, or for the purpose of evaluating or monitoring the performance of a mediator, mediation organization, mediation service, or dispute resolution program, so long as the parties or the specific circumstances of the parties' controversy are not identified or identifiable.
KeyCite Yellow Flag - Negative Treatment
Distinguished by Heidebrink v. Moriwaki, Wash., September 5, 1985
638 P.2d 1372
Supreme Court of Colorado, En Banc.
Michael Dennis HAWKINS, Petitioner,
v.
The DISTRICT COURT In and For the FOURTH JUDICIAL DISTRICT and the Honorable William E. Rhodes, one of the Judges thereof, Respondents.
No. 81SA434.
|
Jan. 18, 1982.
Synopsis
Following denial by trial court of insured’s motion to compel discovery in suit against fire insurer for refusal to pay claim, insured brought original proceeding challenging the ruling. The Supreme Court, Quinn, J., held that: (1) fact that denial of motion to compel discovery would preclude insured from obtaining information vital to his claims for relief justified exercise of original jurisdiction; and (2) in absence of showing by fire insurer that investigative reports and witnesses’ statements were prepared in anticipation of litigation or for trial, trial court had to presume that such documents were prepared in the ordinary course of business and therefore not subject to the special discovery requirements for trial preparation materials; and (3) even if insurer demonstrated that the documents did constitute trial preparation materials, insured suing insurer for failure to pay claim could obtain discovery, except for mental impressions, conclusions, opinions or legal theories, upon showing of substantial need for materials in the preparation of his case and inability without undue hardship to obtain the substantial equivalent of the requested information by other means.
Rule made absolute and respondent court directed to reconsider motion.
West Headnotes (12)
|
106Courts 106VICourts of Appellate Jurisdiction 106VI(A)Grounds of Jurisdiction in General 106k206Original Jurisdiction in General 106k206(2)Colorado |
|
|
Orders pertaining to pretrial discovery are interlocutory in nature and generally are not reviewable in an original proceeding, but Supreme Court will exercise its original jurisdiction when a pretrial order departs significantly from the standards prescribed by the rules of civil procedure and places a party at an unwarranted disadvantage in litigating the merits of his case. |
|
106Courts 106VICourts of Appellate Jurisdiction 106VI(A)Grounds of Jurisdiction in General 106k206Original Jurisdiction in General 106k206(2)Colorado |
|
|
Fact that trial court’s denial of motion to compel discovery would preclude party from obtaining information vital to his claims for relief justified exercise by the Supreme Court of original jurisdiction. |
|
Pretrial ProcedureDiscovering truth, narrowing issues, and eliminating surprise |
|
|
307APretrial Procedure 307AIIDepositions and Discovery 307AII(A)Discovery in General 307Ak14Nature and Purpose 307Ak15Discovering truth, narrowing issues, and eliminating surprise |
|
|
Purposes of pretrial discovery include elimination of surprise at trial, discovery of relevant evidence, simplification of issues, and promotion of expeditious settlement of cases. Rules Civ.Proc., Rules 26, 26(b)(1). |
|
307APretrial Procedure 307AIIDepositions and Discovery 307AII(A)Discovery in General 307Ak35Work-product privilege |
|
|
Rule providing for a qualified immunity from discovery for materials prepared in anticipation of litigation or for trial draws no distinction between trial preparation materials compiled by an attorney and those prepared by some other agent of a party; significance of documents, reports and statements being prepared by or under the direction of an attorney, rather than a nonattorney agent of a party, is that attorney’s participation is some indication that the materials were prepared in anticipation of litigation or for trial. Rules Civ.Proc., Rule 26(b)(3). |
|
307APretrial Procedure 307AIIDepositions and Discovery 307AII(A)Discovery in General 307Ak35Work-product privilege (Formerly 307Ak34) |
|
|
Rule providing qualified immunity from discovery for materials prepared in anticipation of litigation or for trial is not intended to protect from general discovery materials prepared in the ordinary course of business. Rules Civ.Proc., Rule 26(b)(3). |
|
307APretrial Procedure 307AIIDepositions and Discovery 307AII(A)Discovery in General 307Ak35Work-product privilege |
|
|
It must be presumed that reports and witness’ statements compiled by or on behalf of insurer in investigating claims made by an insured against the company or by some other party against an insured are ordinary business records as distinguished from trial preparation materials, for purposes of pretrial discovery, but under appropriate circumstances an insurer’s investigation of a claim may shift from ordinary business activity to conduct “in anticipation of litigation” within the qualified immunity from discovery for materials prepared in anticipation of litigation or for trial. Rules Civ.Proc., Rule 26(b)(3). |
|
307APretrial Procedure 307AIIDepositions and Discovery 307AII(A)Discovery in General 307Ak35Work-product privilege |
|
|
Document may be prepared “in anticipation of litigation” so as to be within qualified immunity from discovery prior to actual commencement of litigation, but commencement of litigation is not sufficient by itself to confer qualified immunity on document thereafter prepared; general standard is whether, in light of the nature of the document and the factual situation in the particular case, the party resisting discovery demonstrates that the document was prepared or obtained in contemplation of specific litigation. Rules Civ.Proc., Rule 26(b)(3). |
|
307APretrial Procedure 307AIIDepositions and Discovery 307AII(E)Production of Documents and Things and Entry on Land 307AII(E)4Proceedings 307Ak404Affidavits and Showing 307Ak410Burden of proof |
|
|
Insurance company defending a claim and asserting that its reports and witness’ statements are trial preparation materials within qualified immunity from discovery has burden of demonstrating that document was prepared or obtained in order to defend the specific claim which already had arisen and, when the documents were prepared or obtained, there was a substantial probability of imminent litigation over the claim or a lawsuit had already been filed. Rules Civ.Proc., Rule 26(b)(3). |
|
307APretrial Procedure 307AIIDepositions and Discovery 307AII(E)Production of Documents and Things and Entry on Land 307AII(E)4Proceedings 307Ak404Affidavits and Showing 307Ak406Privilege 307APretrial Procedure 307AIIDepositions and Discovery 307AII(E)Production of Documents and Things and Entry on Land 307AII(E)4Proceedings 307Ak404Affidavits and Showing 307Ak410Burden of proof |
|
|
Showing by insurer that reports and statements were compiled by or under direction of its legal counsel for use in specific litigation about to be filed or for use in an upcoming trial would be conclusive evidence that documents are trial preparation materials within qualified immunity from discovery, but showing that a claims adjuster, or even a lawyer not acting as legal counselor for the insurer, conducted an investigation of a claim during which he compiled various reports and statements would not be sufficient by itself to overcome the presumption of an ordinary business activity. |
|
Pretrial ProcedureBusiness and financial records and reports |
|
|
307APretrial Procedure 307AIIDepositions and Discovery 307AII(E)Production of Documents and Things and Entry on Land 307AII(E)3Particular Documents or Things 307Ak375Business and financial records and reports |
|
|
Only requirement for discovery of ordinary business records is that they be reasonably calculated to lead to the discovery of admissible evidence. Rules Civ.Proc., Rule 26(b)(1). |
|
Pretrial ProcedureRequest, notice, or motion and response or objection |
|
|
307APretrial Procedure 307AIIDepositions and Discovery 307AII(E)Production of Documents and Things and Entry on Land 307AII(E)4Proceedings 307Ak403Request, notice, or motion and response or objection |
|
|
Request within interrogatories for production of documents was not improper. Rules Civ.Proc., Rules 33, 34. |
|
307APretrial Procedure 307AIIDepositions and Discovery 307AII(E)Production of Documents and Things and Entry on Land 307AII(E)4Proceedings 307Ak404Affidavits and Showing 307Ak405Good cause in general 307APretrial Procedure 307AIIDepositions and Discovery 307AII(E)Production of Documents and Things and Entry on Land 307AII(E)4Proceedings 307Ak404Affidavits and Showing 307Ak410Burden of proof |
|
|
In absence of showing by fire insurer that investigative reports and witnesses’ statements were prepared in anticipation of litigation or for trial, trial court had to presume that such documents were prepared in the ordinary course of business and therefore not subject to the special discovery requirements for trial preparation materials, but even if insurer demonstrated that the documents did constitute trial preparation materials, insured suing insurer for failure to pay claim could obtain discovery, except for mental impressions, conclusions, opinions or legal theories, upon showing of substantial need for materials in the preparation of his case and inability without undue hardship to obtain the substantial equivalent of the requested information by other means. Rules Civ.Proc., Rules 26, 26(b)(3). |
Attorneys and Law Firms
*1374 Henry B. Eastland, P. C., Colorado Springs, for petitioner.
Kane, Donley & Wills, Jerry Alan Donley, Colorado Springs, for respondents.
Opinion
QUINN, Justice.
In this original proceeding we are asked to determine whether investigative reports and witnesses’ statements compiled by an insurance adjuster in the course of investigating and attempting to settle a fire loss with an insured are discoverable in an action by the insured against an insurance company for failing to pay the fire loss claim. The respondent court held that such information was privileged and therefore not discoverable. The petitioner-insured, Michael Dennis Hawkins, thereafter commenced an original proceeding in this court. We issued a rule to show cause and now make the rule absolute.
I.
A brief recitation of the facts will place the issue in focus. The petitioner is an insured under a fire insurance policy on his home in Teller County, Colorado. The house and contents were destroyed by fire on February 16, 1981, and the petitioner filed a loss claim with MFA Mutual Insurance Company (MFA) for the full amount of coverage on the dwelling, the unscheduled personal property, and also for additional living expenses.1 MFA assigned a claims adjuster to investigate the loss and to attempt to settle the claim. During the ensuing investigation the adjuster discussed with and took statements from various witnesses concerning the acquisition of insurance on the home, the origin of the fire, and the accuracy of the petitioner’s proof of loss filed with the company. MFA refused to pay the petitioner’s claim and the petitioner sued the company for breach of the insuring agreement, bad faith in refusing to pay his claim, and outrageous conduct.
|
It appears from MFA’s answers to interrogatories that the fire insurance was procured in the petitioner’s name by the former owner who held a deed of trust on the property. |
In the course of the pending litigation the petitioner served interrogatories on MFA requesting, inter alia, the notes and investigative reports of the adjuster regarding his interviews with several named individuals as well as any statements taken from these persons. On the advice of counsel MFA *1375 refused to supply the requested information. The petitioner filed a motion to compel discovery under C.R.C.P. 37. The respondent court denied the petitioner’s motion, ruling that the interrogatories sought “critical and privileged material between the insurance company and the insurance company’s adjuster” and, therefore, such information was not discoverable. Although the respondent court did not particularize the nature of the privilege on which it relied in denying the petitioner’s motion to compel, it is apparent that the only conceivable basis for the court’s denial of discovery was the work product doctrine. We conclude that the respondent court abused its discretion in its summary denial of the petitioner’s motion to compel discovery on the basis of the work product doctrine.
II.
[1] [2] At the outset we recognize that orders pertaining to pretrial discovery are interlocutory in nature and generally are not reviewable in an original proceeding. However, we have not been reluctant to exercise our original jurisdiction when a pretrial order departs significantly from the standards prescribed by the rules of civil procedure and places a party at an unwarranted disadvantage in litigating the merits of his case. See, e.g., Sanchez v. District Court, Colo., 624 P.2d 1314 (1981); Seymour v. District Court, 196 Colo. 102, 581 P.2d 302 (1978); Tyler v. District Court, 193 Colo. 31, 561 P.2d 1260 (1977). The respondent court’s denial of the petitioner’s motion to compel discovery will preclude the petitioner from obtaining information vital to his claims for relief and justifies our exercise of original jurisdiction under the circumstances present here.
[3] The general contours of discovery are outlined in C.R.C.P. 26. Rule 26(b)(1) authorizes the discovery of “any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or the claim or defense of any other party....” The information sought need not be admissible at trial and is discoverable so long as it “appears reasonably calculated to lead to the discovery of admissible evidence.” C.R.C.P. 26(b)(1). The purposes of pretrial discovery include the elimination of surprise at trial, the discovery of relevant evidence, the simplification of issues, and the promotion of expeditious settlement of cases. Cameron v. District Court, 193 Colo. 286, 565 P.2d 925 (1977). In keeping with these purposes we have consistently adhered to certain basic principles in resolving discovery disputes:
“First, the rules should be construed liberally to effectuate the full extent of their truth-seeking purpose.... Second, in close cases, the balance must be struck in favor of allowing discovery.... Third, the party opposing discovery bears the burden of showing ‘good cause’ that he is entitled to a protective order ‘which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.’ ” Cameron v. District Court, supra, 193 Colo. at 290, 565 P.2d at 925-29.
In order to determine whether the respondent court properly applied the work product doctrine to the petitioner’s interrogatories served upon MFA, we briefly examine the development of the doctrine since it was first enunciated by the United States Supreme Court in Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947). In Hickman the Court held that “written statements, private memoranda and personal recollections prepared by an adverse party’s counsel in the course of his legal duties” are not discoverable in the absence of a showing of necessity or justification.2 In the wake of Hickman conflicting *1376 views developed over (1) whether discovery of trial preparation materials required only a showing of relevancy and lack of privilege, or an additional showing of necessity, (2) whether the work product doctrine extends beyond work actually performed by lawyers, and (3) what relationship, if any, existed between the “good cause” requirement of Rule 34 and the “necessity or justification” of the work product doctrine. Notes of Advisory Committee on 1970 Amendments to Federal Rules of Civil Procedure (Advisory Committee Notes), 48 F.R.D. 487, 499-500 (1970).
|
In Hickman the plaintiff sued certain tugboat owners to recover damages for the death of a seaman, who along with several other crew members had been drowned in the sinking of the tug. The owners, shortly after the sinking, had employed a law firm to defend against potential suits by representatives of the deceased crew members. The plaintiff served numerous interrogatories on the defendant owners, including one inquiry whether any statements of crew members were taken in connection with the accident and requesting copies of any written statements and a detailed summary of any oral statements or reports. In its opinion the Supreme Court disregarded the procedural irregularity involved in seeking discovery by interrogatory under Fed.R.Civ.P. 33 rather than a request for production under Fed.R.Civ.P. 34. The Court considered the basic question to be “whether any of those devices may be used to inquire into materials collected by an adverse party’s counsel in the course of preparation for possible litigation.” 329 U.S. at 505, 67 S.Ct. at 391, 91 L.Ed. at 459. It held that the information was not discoverable because the plaintiff had failed to make a proper showing “of the necessity for the production of any of this material or any demonstration that denial of production would cause undue hardship or injustice.” 329 U.S. at 509, 67 S.Ct. at 393, 91 L.Ed. at 461. However, the Court pointed out that “(w)here relevant and non-privileged facts remain hidden in an attorney’s file and where production of those facts is essential to the preparation of one’s case, discovery may properly be had.... But the general policy against invading the privacy of an attorney’s course of preparation is so well recognized and so essential to the 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. That burden, we believe, is necessarily implicit in the rules as now constituted.” 329 U.S. at 511-12, 67 S.Ct. at 394, 91 L.Ed. at 462-63. The Court’s reference to “the rules as now constituted” was directed to the then existing Rule 34 which required a showing of good cause for a court order directing another party to produce documents. The “good cause” requirement of Rule 34 was deleted in the 1970 amendments to the Federal Rules of Civil Procedure and no such requirement exists in C.R.C.P. 34. |
Against a backdrop of varied judicial interpretations,3 the United States Supreme Court in 1970 promulgated Fed.R.Civ.P. 26(b) as part of a major revision calculated to integrate into one rule the standards regulating the scope of pretrial discovery. Advisory Committee Notes, supra at 490. C.R.C.P. 26 parallels Fed.R.Civ.P. 26 and became effective April 1, 1970, shortly after the United States Supreme Court approved the federal counterpart. Rule 26(b) (3) provides in pertinent part:
|
For different interpretations of the Hickman requirements prior to 1970, see, e.g., Goosman v. A. Duie Pyle, Inc., 320 F.2d 45 (4th Cir. 1963); Helverson v. J. J. Newberry Co., 16 F.R.D. 330 (W.D.Mo.1954). |
“(A) party may obtain discovery of documents and tangible things otherwise discoverable under subsection (b)(1) of this Rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other party’s representative (including his attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.”
[4] Rule 26(b)(3) broadens the scope of discovery to include matters formerly protected by some courts under the work product doctrine. Materials prepared “in anticipation of litigation or for trial” enjoy a qualified immunity from discovery in that they are discoverable only upon a showing by the party seeking discovery of a substantial need for such materials in the preparation of his case and an inability without undue hardship to obtain their substantial equivalent by other means. C.R.C.P. 26(b)(3), like Fed.R.Civ.P. 26(b)(3), draws no distinction between trial preparation materials *1377 compiled by an attorney and those prepared by some other agent of a party.4 However, as the rule makes clear, the court in ordering the discovery of trial preparation materials must protect the “mental impressions, conclusions, opinions, or legal theories” of the attorney or other representative of the party. Documents and other tangible things not prepared “in anticipation of litigation or for trial” are discoverable so long as they appear “reasonably calculated to lead to the discovery of admissible evidence.” C.R.C.P. 26(b) (1).5
|
In Spaulding v. Denton, 68 F.R.D. 342, 345 (D.Del.1975), the court stated: “In giving nonlawyers equal status with lawyers for purposes of ‘anticipation of litigation,’ it was not the Committee’s goal to widen or narrow the scope of the basic ‘work product’ doctrine. Rather, the goal was ‘to require a showing of relevancy and need for the production of trial preparation materials, whether prepared by an attorney or by the party or his agent.’ 4 J. Moore, Federal Practice P 26.64(3) (1975 supp.) p. 50. See 8 Wright & Miller, Federal Practice and Procedure: Civil s 2024, pp. 196-199 (1970).” The significance of documents, reports and statements being prepared by or under the direction of an attorney, rather than a nonattorney agent of a party, is that the attorney’s participation is some indication that the materials were prepared in anticipation of litigation or for trial. |
|
In Upjohn Co. v. United States, 449 U.S. 383, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981), the corporation’s general counsel had been informed of questionable payments made by one of the corporation’s foreign subsidiaries to foreign government officials and he then began an internal investigation of the matter, including the sending of questionnaires to foreign managers and the conducting of interviews with corporate officers and employees. The Internal Revenue Service issued a summons pursuant to 26 U.S.C. s 7602 demanding production of the questionnaires and counsel’s notes on the interviews. The corporation declined to produce the material sought, asserting the attorney-client privilege and the work product doctrine. The Supreme Court held that the general counsel’s notes and memoranda based on oral statements of employees interviewed by the attorney, to the extent not already protected by the attorney-client privilege, were protected from disclosure by the work product doctrine and that the magistrate, in ordering enforcement of the IRS summons, had incorrectly applied the “substantial need” and “without undue hardship” standard of Rule 26(b)(3). After noting that “(f)orcing an attorney to disclose notes and memoranda of witnesses’ oral statements is particularly disfavored because it tends to reveal the attorney’s mental processes,” 449 U.S. 383, 399, 101 S.Ct. 677, 687, 66 L.Ed.2d 584, 597, the Court concluded: “The notes and memoranda sought by the Government here, however, are work product based on oral statements. If they reveal communications, they are, in this case, protected by the attorney-client privilege. To the extent they do not reveal communications, they reveal the attorneys’ mental processes in evaluating the communications. As Rule 26 and Hickman make clear, such work product cannot be disclosed simply on a showing of substantial need and inability to obtain the equivalent without undue hardship. “While we are not prepared at this juncture to say that such material is always protected by the work-product rule, we think a far stronger showing of necessity and unavailability by other means than was made by the Government or applied by the Magistrate in this case would be necessary to compel disclosure.” 449 U.S. at 401-402, 101 S.Ct. at 688-689, 66 L.Ed.2d at 599. |
[5] Rule 26(b)(3) is not intended to protect from general discovery materials prepared in the ordinary course of business. Advisory Committee Notes, supra, at 501. Courts generally have held that reports made and statements taken by an insurance adjuster for an insurance company in the normal course of investigating a claim are prepared in the regular course of the company’s business and, therefore, not in anticipation of litigation or for trial. The rationale for such an approach was cogently expressed in Thomas Organ Co. v. Jadranska Slobodna Plovidba, 54 F.R.D. 367, 373 (D.C.N.D.Ill.1972):
“If ... the law were as suggested by the plaintiff,6 i.e., that after a claim has *1378 arisen, litigation may be deemed a contingency and any document prepared after such a claim has arisen is prepared in anticipation of litigation as concerns Rule 26(b)(3) irrespective of whether an attorney in the role of counselor has been consulted, hardly any document authored by or for an agent of an insurance company could even be discoverable without the showing of substantial need and undue hardship required by subsection (b)(3) of Rule 26. An insurance company by the nature of its business is not called into action until one of its insured has suffered some form of injury and has a potential claim against some other party and/or the insurer itself. At this point, the insurer must conduct a review of the factual data underlying the claim, presumably through the talents of agents or employees who summarize the data for middle-or upper-management, the latter deciding whether to resist the claim, to reimburse the insured and seek subrogation of the insured’s claim against the third party, or to reimburse the insured and forget about the claim thereafter. The logical absurdity of the plaintiff’s position is that, under its theory, the amendments to the discovery rules which were believed to be a liberalization of the scope of discovery would be a foreclosure of discovery of almost all internal documents of insurance companies relating to the claims of insureds. We do not believe that Rule 26(b)(3) was designed to so insulate insurance companies merely because they always deal with potential claims. If this were true, they would be relieved of a substantial portion of the obligations of discovery imposed on parties generally that are designed to insure that the fact finding process does not become reduced to gamesmanship that rewards parties for hiding or obscuring potentially significant facts.”
|
In Thomas Organ Co., the plaintiff filed a suit in admiralty to recover damages for a cargo loss. The defendant ocean carriers contended that the loss resulted from the plaintiff’s improper design and packing of the goods prior to shipment and the improper handling of them after they left the defendant’s custody. The defendant sought production of two documents written by a marine surveyor hired by the plaintiff’s insurer who surveyed the damaged goods shortly after their arrival. The plaintiff refused to produce the documents, contending that they were prepared “in anticipation of litigation” as contemplated by Fed.R.Civ.P. 26(b)(3). |
Accord, e.g., McDougall v. Dunn, 468 F.2d 468 (4th Cir. 1972) (witness statements taken by insurance adjuster before commencement of litigation discoverable as regular business records rather than trial preparation materials); Westhemeco Limited v. New Hampshire Insurance Co., 82 F.R.D. 702 (S.D.N.Y.1979) (reports issued to and by surveyor-investigator in course of investigating and attempting to negotiate insurance claim with insured for damage to goods shipped under bill of lading not prepared in anticipation of litigation and hence discoverable); Spaulding v. Denton, 68 F.R.D. 342 (D.Del.1975) (reports of marine surveyor’s firm hired by yacht owner’s insurer in attempt to find out as much as possible, as soon as possible, about sinking of yacht not prepared in anticipation of litigation and thus freely discoverable); Atlanta Coca-Cola Bottling Co. v. Transamerica Insurance Co., 61 F.R.D. 115 (N.D.Ga.1972) (insurer’s investigation report of insured’s claim for payment under policy insuring against employee thefts discoverable as ordinary business record); Henry Enterprises, Inc. v. Smith, 225 Kan. 615, 592 P.2d 915 (1979) (insurer’s investigation of potential claim discoverable as ordinary business record and not in anticipation of litigation or for trial).
[6] [7] Because a substantial part of an insurance company’s business is to investigate claims made by an insured against the company or by some other party against an insured, it must be presumed that such investigations are part of the normal business activity of the company and that reports and witness’ statements compiled by or on behalf of the insurer in the course of such investigations are ordinary business records as distinguished from trial preparation materials. See, e.g., Thomas Organ Co. v. Jadranska Slobodna Plovidba, supra; McDougall v. Dunn, supra; Atlanta Coca-Cola Bottling Co. v. Transamerica Insurance Co., supra; Henry Enterprises, Inc. v. Smith, supra. This is not to say, however, that under appropriate circumstances an insurance company’s investigation of a claim may not shift from an ordinary business activity to conduct “in anticipation of litigation”. Admittedly, there is no bright line which will mark the division between these two types of activities in all cases. On the one hand a document may be prepared “in anticipation of litigation” prior to the actual *1379 commencement of litigation and, on the other, the commencement of litigation is not sufficient by itself to confer a qualified immunity from discovery on a document thereafter prepared. The general standard to be applied is whether, in light of the nature of the document and the factual situation in the particular case, the party resisting discovery demonstrates that the document was prepared or obtained in contemplation of specific litigation. See generally 8 C. Wright and A. Miller, Federal Practice and Procedure s 2024 (1970).
[8] [9] [10] In the case of an insurance company defending a claim and asserting that its reports and witness’ statements are trial preparation materials under C.R.C.P. 26(b)(3), the insurance company has the burden of demonstrating that the document was prepared or obtained in order to defend the specific claim which already had arisen and, when the documents were prepared or obtained, there was a substantial probability of imminent litigation over the claim or a lawsuit had already been filed. Miles v. Bell Helicopter Co., 385 F.Supp. 1029 (N.D.Ga.1974); Westhemeco Limited v. New Hampshire Insurance Co., supra; Spaulding v. Denton, supra; Hopkins v. Chesapeake Utilities Corp., 300 A.2d 12 (Del.Super.1972). Thus, a showing by the insurance company that reports and statements were compiled by or under the direction of the insured’s legal counsel for use in specific litigation about to be filed or for use in an upcoming trial would be conclusive evidence that these documents are trial preparation materials. Conversely, a showing that a claims adjuster, or even a lawyer not acting as a legal counselor for the insurer, conducted an investigation of a claim, during which he compiled various reports and statements, would not be sufficient by itself to overcome the presumption of an ordinary business activity. In the absence of more formidable evidence such documents would be presumed to be ordinary business records and, as such, discoverable without any showing of substantial need or undue hardship. The only requirement for discovery of ordinary business records is that they be reasonably calculated to lead to the discovery of admissible evidence. C.R.C.P. 26(b)(1).
III.
[11] In this case the record indicates that petitioner sought discovery of the investigative reports and witnesses’ statements compiled by an insurance adjuster who was acting under the general directions of MFA in investigating a fire loss shortly after its occurrence and was attempting to settle the claim with the insured.7 Such documents, if not essential to the petitioner’s claim against MFA for failure to pay the full amount of his loss, appear at the very least to be reasonably calculated to lead to the discovery of admissible evidence. The respondent court in denying the petitioner’s motion to compel discovery apparently believed that the information requested was protected from discovery under the work product doctrine. However, there is nothing in the pleadings and documents filed with this court demonstrating that the documents enjoy a qualified immunity from discovery under C.R.C.P. 26(b)(3) by virtue of their character as trial preparation materials.
|
The petitioner’s request for discovery was in the form of interrogatories under C.R.C.P. 33 with an additional request contained therein that MFA attach to its answers any written documentation, notes or reports relating to the adjuster’s contact with certain persons allegedly having information about the petitioner’s claim. MFA does not question the form of discovery employed by the petitioner and has raised no objection to it on that basis. Rule 34 permits a party to serve on another party a request to produce designated documents containing matters within the scope of Rule 26(b) and which are in possession, custody, or control of the party upon whom the request is served. In view of the 1970 amendments to the rules, which establish identical standards for discovery under C.R.C.P. 33 and 34, we believe the petitioner’s use of interrogatories with a request within the interrogatories for production of documents was not improper. |
[12] It is MFA’s burden to establish that the investigative reports and witnesses’ statements were prepared “in anticipation *1380 of litigation or for trial” within the meaning of C.R.C.P. 26(b)(3). E.g., Cameron v. District Court, 193 Colo. 286, 565 P.2d 925 (1977); Curtis, Inc. v. District Court, 186 Colo. 226, 526 P.2d 1335 (1974). In the absence of such a showing the respondent court must presume that such documents were prepared in the ordinary course of MFA’s business and, therefore, are not subject to the special discovery requirements of C.R.C.P. 26(b)(3). Even if MFA demonstrates that the requested documents constitute trial preparation materials under Rule 26(b)(3), the petitioner nevertheless may obtain discovery upon a showing of substantial need of the materials in the preparation of his case and an inability without undue hardship to obtain the substantial equivalent of the requested information by other means.8
|
If the respondent court orders discovery of trial preparation materials, it must protect against disclosure the mental impressions, conclusions, opinions, or legal theories of MFA’s attorney or other representative. C.R.C.P. 26(b)(3). |
Considering the obvious nexus between the requested information and the petitioner’s claims against MFA, along with the absence of any showing by MFA of a valid basis for refusal to make discovery, the respondent court’s denial of discovery on the apparent basis of the work product doctrine reflects a misapprehension of the nature and scope of that doctrine. Because the court did not apply the appropriate standards for discovery under C.R.C.P. 26, the rule to show cause is made absolute and the respondent court is directed to reconsider the petitioner’s motion to compel discovery in accordance with the views expressed herein.
All Citations
638 P.2d 1372
|
End of Document |
© 2020 Thomson Reuters. No claim to original U.S. Government Works. |