A tugboat that sank in 1943 still decides which trial notes the other side can see.

The J. M. Taylor sank on February 7, 1943, in the Delaware River at Philadelphia while helping tow a Baltimore & Ohio Railroad car float across the river. Five of its nine crew members drowned.

On March 4, the four survivors testified at a public hearing before the United States Steamboat Inspectors. Their testimony was recorded and made available to interested parties. Twenty-five days later, Fortenbaugh, a lawyer hired by the tug owners and their underwriters, privately interviewed the survivors and took signed statements from them. He also interviewed other people and sometimes kept memoranda of what they said.

That wreck produced Hickman v. Taylor, 329 U.S. 495, decided January 13, 1947. The decision remains the starting point for determining what one side may obtain from the other side's trial preparation.

The interrogatory that asked for the crew's statements

The representative of one deceased crew member sued under the Jones Act in federal court in the Eastern District of Pennsylvania on November 26, 1943, naming the tug owners and the railroad.

Interrogatory No. 38 asked whether statements had been taken from the crew. If so, it demanded copies of written statements and details of oral statements. The tug owners refused, saying the request sought privileged material obtained in preparation for litigation.

The district court rejected that position. It held the material was not privileged, ordered production, and held the tug owners and Fortenbaugh in contempt when they refused. The Third Circuit, sitting en banc, reversed. It treated the material as the "work product of the lawyer" and therefore privileged.

The Supreme Court affirmed the Third Circuit. Justice Frank Murphy wrote the opinion. Justice Robert Jackson concurred, joined by Justice Felix Frankfurter.

The Court did not hold that the material was protected by the attorney-client privilege. It held instead that the petitioner had not shown the necessity or justification required to obtain the material. The protected category included interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and other tangible and intangible items.

Facts are discoverable, the file is not

Hickman did not create a general rule blocking access to facts. The Court said, "Mutual knowledge of all the relevant facts gathered by both parties is essential to proper litigation."

The distinction was between facts and the lawyer's preparation for presenting them. A party may still depose the same witnesses and ask about what they saw, heard, or know. The survivors of the J. M. Taylor were available to the petitioner, and their testimony had already been taken publicly. That availability defeated the demand for Fortenbaugh's private files.

The Court recognized that production could be ordered when relevant, non-privileged facts remained hidden in an attorney's file and production was essential to preparing the requesting party's case. The Court gave as examples witnesses who were no longer available or could be reached only with difficulty. Those circumstances were not present in Hickman.

The Court was more protective of Fortenbaugh's own memoranda and recollections of oral statements. Requiring production could expose the lawyer's mental processes and turn the lawyer into a witness. Justice Jackson described the concern in his concurrence: discovery "was hardly intended to enable a learned profession to perform its functions either without wits or on wits borrowed from the adversary."

What the 1970 rule wrote down

In 1970, amendments to the Federal Rules of Civil Procedure codified the doctrine in Rule 26(b)(3). The Advisory Committee note discussed Hickman and explained that the rule replaced the looser good-cause approach then used by courts with a requirement of substantial need.

Rule 26(b)(3)(A) now provides that a party ordinarily may not discover documents and tangible things prepared in anticipation of litigation or for trial by or for another party or its representative. The listed representatives include an attorney, consultant, surety, indemnitor, insurer, or agent.

Discovery is available only if the material is otherwise discoverable and the requesting party shows substantial need to prepare its case and cannot, without undue hardship, obtain the substantial equivalent by other means.

Rule 26(b)(3)(B) creates a separate protection for opinion work product. Even when discovery is ordered, the court must protect the mental impressions, conclusions, opinions, or legal theories of a party's attorney or other representative concerning the litigation.

That produces two tiers. Ordinary fact work product, such as a witness statement, can be reached on substantial need and undue hardship. Opinion work product receives much stronger protection. In Upjohn Co. v. United States, 449 U.S. 383, decided January 13, 1981, the Court applied Hickman's doctrine to an IRS summons for a company's lawyer's notes and memoranda of employee interviews. It said notes of oral statements are particularly disfavored for disclosure because they tend to reveal the lawyer's mental processes. Such material cannot be ordered produced simply on substantial need and undue hardship. A far stronger showing is required.

Rule 26(b)(3)(C) supplies a separate answer for a person's own statement. Any party or other person may, on request and without the substantial need showing, obtain that person's previous statement about the action or its subject matter. A witness can therefore obtain a copy of the witness's own statement.

Hickman still fills the rule's gap

Rule 26(b)(3) speaks of "documents and tangible things." Hickman addressed a wider category that included intangible material.

In checking this piece, the Archivar editorial desk read the 1947 opinion against the current text of Rule 26(b)(3). The opinion's list includes intangible things such as "mental impressions" and "personal beliefs," while the rule's opening words reach only "documents and tangible things." That gap between the two texts is why lawyers and courts still cite Hickman directly rather than relying only on the rule.

Most federal courts continue to protect intangible work product, including a lawyer's oral communications or recollections, by relying directly on Hickman. John Gross & Co. v. Agri Stats, a 2022 Northern District of Illinois decision discussed in practitioner commentary, is one example.

The trigger remains preparation in anticipation of litigation or for trial. The protection is not limited to material created personally by a lawyer. Rule 26(b)(3) reaches material prepared by listed representatives, and United States v. Nobles, 422 U.S. 225, decided June 23, 1975, held that the doctrine covers material prepared by an attorney's agents, such as an investigator.

Nobles also shows that protection can be waived by putting the material in play. The defense called its investigator to testify, and the Court held that protection over the investigator's report was waived as to matters covered by that testimony. The Court said the doctrine's role in assuring the proper functioning of the criminal justice system was "even more vital" than in civil cases.

The date and purpose of a record can decide the issue

Archivar, which publishes The Docket, is an operating system for law firms that answers every call 24/7 in English and Spanish, runs intake, manages matters, and remembers everything the firm does. A firm's intake records begin before anyone knows whether there will be a lawsuit. Hickman and Rule 26(b)(3) tie protection to material prepared in anticipation of litigation, so when a note was made and why are questions a court can ask about any record a firm keeps, including the first-call record. Whether a particular record is protected is decided on the facts.

For litigators, the working distinctions are concrete. Separate fact work product from opinion work product. Before demanding a witness statement, ask whether the witness remains available and can be reached without difficulty. Remember that a witness can request the witness's own statement under Rule 26(b)(3)(C). If an investigator may testify, consider the effect before putting that investigator on the stand.

Five men drowned, four survived, and all four were there to be asked.

That is why the lawyer's notes stayed in his file in 1947.

It is still the first question a court asks before it opens one.