UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
argued: October 1, 1945.
GEORGE E. HICKMAN, AS ADMINISTRATOR OF THE ESTATE OF NORMAN E. HICKMAN, DECEASED
JOHN M. TAYLOR AND GEORGE H. ANDERSON, INDIVIDUALLY AND TRADING AS TAYLOR & ANDERSON TOWING AND LIGHTERAGE COMPANY, AND BALTIMORE & OHIO RAILROAD CO. JOHN M. TAYLOR, GEORGE H. ANDERSON AND SAMUEL B. FORTENBAUGH, JR., APPELLANTS.
APPEAL FROM THE ORDER OF THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA. November 10, 1945, Reargued
Before Biggs, Albert Lee Stephens, Maris, Goodrich, Mclaughlin and O'connell, Circuit Judges.
Opinion OF THE COURT
By GOODRICH, Circuit Judge.
This is an appeal from a judgment of the District Court for the Eastern District of Pennsylvania, which adjudged the appellants guilty of criminal contempt and imposed sentence therefor. The appellants are two clients and their lawyer. The basis of the contempt order was their refusal to answer a certain interrogatory propounded by the plaintiff's counsel in a personal injury suit. They took the position that what was asked for was beyond the proper scope of the discovery process under the Federal Rules. The court ruled against them and upon their disobedience of the order adjudged them guilty of contempt. We, therefore, have the basis for appeal.*fn1
The case tests the limits, if any, of the scope of the discovery procedure under the Federal Rules. A reversal of the judgment for contempt would of necessity compel us to decide that the District Court had gone too far. In considering the question we have the help of the host of District Court decisions upon the relevant paragraphs of the Rules. Some of them will be noted below. It is sufficient here to refer to the complete collection in Federal Rules Service, Chapters 26, 33 and 34. There is little appellate authority for the obvious reason that these orders are nearly always interloctury, R. D. Goldberg Theater Corp. v. Tri-States Theater Corp., 8 Fed. Rules Serv. 34.64, Case 1 (D.C. D. Neb. 1944) and cases there cited; the question seldom comes before a Circuit Court of Appeals.*fn2 The instant case had thorough consideration in the District Court. It was heard en banc by all the Judges of the District Court for the Eastern District of Pennsylvania and the thoroughly considered opinion by the Senior Judge was concurred in by all of his colleagues. F. Supp. (1945). The opinion in that Court premises that "The guiding principle is the broad conception of the Rules that discovery of all matters relevant to a suit should be allowed to the fullest extent consistent with the orderly and efficient functioning of the judicial process." Starting from that premise the District Court concluded that the information sought to be elicited was relevant to the suit and that counsel for the defendants could be compelled to disclose it to the opposing party.
Such facts as are needed for an understanding of the controversy may be very briefly stated. A tug owned by Taylor and Anderson had capsized and five seamen met their deaths in the accident. Action was brought by the administrator of one of them under the Jones Act. Through her counsel she filed thirty-nine interrogatories. The appellants answered all but one. This one is Number 38 which reads as follows:
"(38) 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'. 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."
There were some supplemental interrogatories including a request for the production of memoranda.*fn3 Mr. Fortenbaugh, the lawyer concerned, filed a written statement and later testified by deposition telling how and why the statements were obtained. So much for background of fact. Was the District Court correct in its law?
The parties are not entirely clear which of the Federal Rules is involved. The appellant says it is 34 or perhaps 33 and 34. The appellee in oral argument stated that he was proceeding under Rule 33. The District Court considered the plaintiff to be proceeding under Rule 33, although it said that the plaintiff could have elected to take depositions or, in case of written statements, have filed a motion to produce under Rule 34. Then the District Court stated that "What is said in this opinion applies to all three forms of discovery."
We take up this point first before getting to the main question. We think that 33 is the Rule involved and, for reasons which appear later, Rule 26 also. Plaintiff is not seeking to see an original document and copy or photograph it as provided in Rule 34. He is proceeding by interrogatory and, in connection with an interrogatory, wants the defendant to give him a copy of a memorandum. This is, in our opinion, concerned with Rule 33 rather than 34. But since the District Court, as above quoted, proceeded upon the theory that what is said applied to all the discovery Rules we are required to point out a difference in language in these Rules which we think must be given attention. Rule 34 requires good cause to be shown.*fn4 The opinion of the District Court states that it amends its statement in Stark v. American Dredging Company, 3 F.R.D. 300 and that the rule be restated "Unless, under the circumstances of any particular case, the court is satisfied that the administration of justice will be in some way impeded, discovery will be granted when asked." We think this is the proper approach to the exercise of discretion under Rule 33. We do not think that it is correct under the language used in Rule 34. The requirement in Rule 34 for showing of good cause cannot be disregarded. Insofar as the remarks of the learned District Court apply to Rule 34, they went too far. Insofar as they apply to Rule 26 and Rule 33 they are approved. This point does not change the result in the instant case or relieve us from facing the problem it presents. We pass on it because the District Court passed on it by applying its opinion to all the Rules which provide for discovery. We go on then to the difficult question involved in the appeal.
The important matters called for in the interrogatory are statements which the lawyer, acting in an investigating capacity, has taken from persons who have, or purport to have, knowledge about the facts which gave rise to the lawsuit. Two things are asked for. One is a copy of the statements which are in writing, whether signed or not, or merely memoranda; the other is that the lawyer reduce oral statements to writing and give his opponent a copy thereof.
As we approach the question we must discard some favorite craft notions of the advocate. We must discard, for instance, the concept that there is something close to a property right in the information which the lawyer digs up about the client's case and has in his possession.*fn5 We must also discard the notion that questions from the other side can be fended off on the ground that the opponent's lawyer is simply engaged in a fishing expedition.*fn6 These notions are hard to get rid of, but we take it that they are contrary to the idea back of this discovery portion of the Federal Rules. The premise taken by the District Court, quoted above, is not dissimilar to that of Justice Holtzoff.*fn7 In speaking of discovery he says there are two guiding principles (page 70); "First, every party to a litigation is entitled to secure all evidence, information and documents germane to the issues, even if they are in possession of an adverse party. Second, such evidence, information and documents should be made available before the trial. The purpose is not only to facilitate the obtaining of evidence for use at the trial, but also to reduce the element of surprise to a minimum and shorten trials."
How much of a jolt this theory is to the practicing lawyer depends, in part, upon how far the practice with which he was familiar before the Federal Rules calls for something of the kind. The Rules probably go further than any State practice, but they are a much greater distance from the practice in some States than in others. See (1931) Note, 44 Harv. L. Rev. 633, "The Bill of Discovery Under Reformed Procedure".
We must start any discussion of the use of discovery in a particular case from the premise that the Rules are intended to go far in making information known by one party available to the other. Perhaps it is helpful if we start from a case which all would agree to be within the Rules and see how much further we are called to go here. Suppose the plaintiff needs the information contained in an operating report of a particular department of a defendant employer for a particular day. Such document, we take it, could be called for as a matter of course under the Rules.*fn8 Does the demand in this case really go essentially further?"*fn9 It is true that the defendants, through their lawyer, were diligent in going out and getting these statements before the plaintiff did. We have already indicated that this fact does not prevent the other side from sharing the fruits of that diligence. The Rules sometimes speak of evidence. But whether the documents turn out to be competent as evidence themselves is not the test in discovery proceedings.*fn10 They may, nevertheless, contain statements of fact which may be the source of other information which would be admissible at the trial. We think no distinction is necessarily drawn between oral and written statements. Doubtless the oral statements could not have been considered very important or they would have been committed to writing, but if the Court sees fit to tell a party to write down what he remembers of a conversation we do not see why that recorded recollection may not be made available for what it is worth.
We have no desire to restrict the operation of the rules on discovery by the application of any notion of a semi-property right in information one secures to use in a pending lawsuit against another. Nor do we balk at the notion that the hare may by discovery avail himself of the diligence of the tortoise. The policy back of all this has been discussed by experts in procedure in the Rules Committee and thoroughly debated there and elsewhere. It has become binding upon us by Supreme Court promulgation of the Rules. When such a policy has been adopted either by rule-making court or legislature judges should go along with it. We must not do with the Federal Rules what our forbears on the bench did to the Field Code and those patterned upon it.
The thing which gives us great concern in this case is the impact of the rules for discovery when they affect the lawyer-client relationship. Here is an instance which was discussed at the argument and answered squarely by counsel for appellee in his reply brief. The Court put this case: If a lawyer is required to disclose the results of his investigation into the facts, suppose a witness called by the lawyer for his client, in the course of cross-examination, makes a statement inconsistent with a former statement made to the lawyer and put into possession of the other side through discovery process. May not this lawyer be called to verify the terms of the original statement and thus become a witness against his own client? Appellee says yes and frankly states, "We see no reason why there should be any criticism of this practice."
The Court does not take such a light-hearted view of the situation. Professional tradition that it is undesirable that a lawyer should be both advocate and witness for his client finds expression in Section 19 of the Canons of Ethics.*fn11 The lawyer as a witness against his client must have seemed too remote a possibility to the framers of the Canons to be included, for it is not covered expressly. Such a situation certainly puts the lawyer into the position where he cannot show that undivided allegiance to the client's cause which the relationship postulates. Must he, then, withdraw from the case? If so, there seems to be offered an easy and tempting means for the advocate for one side to get rid of a dangerous adversary.
Admittedly the Rules do not expressly cover the exact question presented here. Obviously its further consideration by the Advisory Committee has emphasized rather than solved the difficulties inherent in the question.*fn12 District Courts have for varying reasons, or no expressed reasons at all, reached conclusions both ways.*fn13
Our consideration of the problem leads us to the conclusion that there is more in the exception of "privilege" than has been so far developed. First, on this point, let us look at the language of the Rules. Rule 26 (b), on the subject of depositions, says that the deponent may be examined "regarding any matter, not privileged, which is relevant to the subject-matter involved in the pending action." Rule 34 permits the ordering of production, inspection etc., of documents and other things "not privileged."
Now we get into deep water. Rule 33 interrogatories), which the Committee Notes say incorporates Equity Rule 58, is by its terms applicable only to adverse parties, not their agents, nor, a fortiori, their legal counsellors. If the party is an association, corporation, or partnership, special provision is made. On Rule 33 alone interrogatories were not authorized to be directed to Mr. Fortenbaugh, and he certainly could not be in contempt for failing to answer an interrogatory not authorized by the Rules.
But there is more to the story. Rule 26 (depositions pending action) allows the testimony of "any person, whether a party or not" to be taken by deposition "upon oral examination or written interrogatories". To have interrogatories addressed to one not a party to the litigation, therefore, the procedure must be under Rule 26, not Rule 33.
As already stated, Rule 26 has a privilege limitation upon the scope of examination. Rule 33 says nothing about privilege. We think that Rule 33 is subject to the same privilege limitation as Rules 26 and 34. One reason for so concluding is that Rule 26 covers interrogatories as well as oral testimony, and the privilege Rule stated in 26 carries over to 33. Another reason is that we cannot believe that such omission was intended. We can see no logic in leaving it out of 33 and putting it in 26 and 34. And we cannot think a rule as old as that of privilege is to be lightly thrown overboard.
So now we have, upon examining the language of the Rules, pushed Mr. Fortenbaugh out from under Rule 33 but kept him in under Rule 26. We have the scope of examination under all three Rules subject to the limitation of privilege.
The heart of the case is what we put into that concept. The Rules, so far at any rate, do not give us the formula. Inspection of the dictionary upon the point proves stimulating to ideas, but not resolving of difficulties.
We do not doubt that privilege as used in the Rules includes all that is comprehended in the rule of testimonial exclusion of confidential statements made by a client to his lawyer.*fn14 That would not exclude that material asked for here, since the statements the lawyer got and interrogatories asked for were not from the client but third parties. Such are not included in the rule of exclusion.*fn15 There are decisions which have extended the privilege to other situations.*fn16 These tend to show a feeling on the part of judges that "privilege" as the term is used in the Federal Rule and "privilege" as one finds the term in the law of evidence as a ground for excluding testimony are not identical. We agree that they are not, but that fact does not take us very far along the road to settlement of the problem.
We are clear in our own minds, however, that "privilege" as used in the Rules comprehends the material asked for in the interrogatory which is the foundation of this proceeding, namely, memoranda of talks with witnesses, signed statements made by witnesses, the lawyer's recollection of talks with witnesses. Our difficulty comes, not in any lack of confidence in our judgment upon the point, but in seeking a phrasing of our conclusion to give it wide enough scope without going too far. For instance, one is tempted to say that the lawyer's files are impregnable against any inquiry from outside. But that depends upon what the lawyer puts in them. A piece of a machine which has hurt someone, a document needed to show a fact, many things required in a lawsuit find their way from client's hands to lawyer's file and are not to be concealed until the day of trial for that reason. But here we are dealing with intangible things, the results of the lawyer's use of his tongue, his pen, and his head, for his client. This was talked about as the "work product of the lawyer" in the argument of the case. This is a phrase which seems pretty well to describe what we are after, though we hesitate to adopt it as a label for our concept for fear that it may contain implications not now apparent to us. It does with fair accuracy describe what we are excluding here under the term privilege. It seems likewise to be about what is represented by English law though the difference in phraseology of the rules makes reference only moderately helpful.*fn17
The reason for this frank extension of privilege beyond testimonial exclusion rests on the same foundation that the rule of evidence does. It is the same foundation upon which we base the immunity of the judge for his official acts in that capacity. It is found again in the non-liability of judge, counsel and witnesses for defamation for what they say in the trial of a lawsuit. In none of these instances is the immunity based on the convenience of the individual judge, lawyer or client. It is rather, a rule of public policy, and the policy is to aid people who have lawsuits and prospective lawsuits. Those members of the public who have matters to be settled through lawyers and through litigation should be free to make full disclosure to their advisers*fn18 and to have those advisers and other persons concerned in the litigation free to put their whole-souled efforts into the business while it is carried on.*fn19 The soundness of this policy is not capable of laboratory demonstration. Enunciated and applied as it necessarily is by members of the guild which derives incidental benefit from its application, it is open to the gibes of the cynical. We believe it is sound policy; we know that it is irrefutably established in the law. That the principle finds application in the facts presented to us on this appeal we are all thoroughly convinced.
The order of the District Court is reversed and the case remanded for further proceedings not inconsistent with this opinion.