Hickman v. Taylor
329 U.S. 495, 67 S.Ct 385, 91 L.Ed. 451 (1947)
The "Taylor" was a tugboat that
sunk under mysterious circumstances, drowning several crewmembers. It
was sued by the owners of the cargo and by the estates of the deceased.
The four surviving crewmembers
were interviewed by the US Steamboat Inspector Commission, and the
transcripts were publicly available. In addition, the Taylor's lawyers
privately interviewed the crewmembers.
The Taylor's lawyer also interviewed
Everyone except Hickman's
Hickman sent a number of interrogatories to the Taylor requesting information. They
specifically asked for the transcripts of the private interviews the Taylor's
lawyer had with the survivors.
The Taylor objected and claimed
that the interviews were protected as privileged information.
The Trial Court found that the
information was not protected, and ordered it to be turned over to
Hickman's lawyer. The Taylor appealed.
orders are not appealable until after
the trial is over. But the Taylor's lawyer purposely defied the order in
order to get a contempt of court citation against him. Since contempt citations are considered a separate
proceeding, they are immediately appealable.
Of course, contempt citations often mean jail time, so your
lawyer has to really care about your case.
The Appellate Court reversed.
The Appellate Court felt
that the transcripts were the "work product of the lawyer", and
as such were privileged as part of
Even though the lawyer's
notepad wasn't technically a communication between the attorney and the
client, that work product is still covered by the same protections.
See Rule 26(b)(3) for info on work product protections.
The US Supreme Court affirmed.
The US Supreme Court felt that
the interrogatory in question was
directed towards the Taylor's lawyer, which is not allowed under Rule 34.
Interrogatories are limited to the parties of the proceeding,
thereby excluding their counsel of agents.
Rule 34 is called, "Production of Documents and
Things and Entry Upon Land for Inspection and Other Purposes."
argued that, since the communication was between the Taylor's lawyer and a
third party (as opposed to between the Taylor's lawyer and the persons liable for claims against the Taylor), it was
not an "attorney-client" matter and therefore was not
The Court felt that
since there were publicly available transcripts of the survivors
statements, and Hickman was free to interview the survivors, the only
purpose to asking for the Taylor's lawyers transcripts was to get inside the
mind of the Taylor's lawyer.