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.
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 ...