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 other witnesses.
  • Everyone except Hickman’s estate settled.
  • 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.
    • Technically, discovery 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. Hickman appealed.
    • The Appellate Court felt that the transcripts were the “work product of the lawyer”, and as such were privileged as part of attorney-client privilege.
      • 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.”
    • Hickman unsuccessfully 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 protected.
    • 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