holding that where defense counsel proposed to call his investigator to impeach eyewitness testimony based on the investigator’s interview reports, work product protection was waived as to those reports, and explaining that where “counsel attempts to make a testimonial use of these materials the normal rules of evidence come into play with respect to cross-examination and production of documents”
How later courts described this case
- holding that where defense counsel proposed to call his investigator to impeach eyewitness testimony based on the investigator’s interview reports, work product protection was waived as to those reports, and explaining that where “counsel attempts to make a testimonial use of these materials the normal rules of evidence come into play with respect to cross-examination and production of documents”
- recognizing the work-product privilege in a criminal case is based upon public policy and rejecting the argument that a court order requiring disclosure of work-product violated respondent’s Sixth Amendment right to effective assistance of counsel where order was a result of respondent’s election to make “testimonial use” of report and court order was “limited and conditional”
- stating “One of those realities is that attorneys often must rely on the assistance of investigators and other agents in the compilation of materials in preparation for trial. It is therefore necessary that the doctrine protect material prepared by agents for the attorney as well as those prepared by the attorney himself.”
- holding, in a pre-Rock case, that the trial court’s preclusion of a defense investigator’s testimony was “an entirely proper method of assuring compliance with its order” where defense counsel had affirmatively refused to submit the investigator’s potentially conflicting report to the prosecution
Written by the judges who cited it.
Distinguished
Distinguished by Floyd v. Baker, 47 F. Supp. 3d 1148 (2014)
Nobles is inapposite.
Distinguished by Hobbs v. Municipal Court, 233 Cal. App. 3d 670 (1991)
" Hobbs maintains Nobles is distinguishable because it did not involve pretrial discovery.
The opinion
Mr. Justice White,
with whom Mr. Justice Rehnquist joins, concurring.
I concur in the judgment and in Parts II, III, and V of the opinion of the Court. I write only because of misgivings about the meaning of Part IV of the opinion. The Court appears to have held in Part IV of its opinion only that whatever protection the defense investigator’s notes of his interviews with witnesses might otherwise have had, that protection would have been lost when the investigator testified about those interviews. With this I agree also. It seems to me more sensible, however, to decide what protection these notes had in the first place before reaching the “waiver” issue. Accordingly, and because I do not believe that the work-product *243 doctrine of Hickman v. Taylor, 329 U. S. 495 (1947), can be extended wholesale from its historic role as a limitation on the nonevidentiary material which may be the subject of pretrial discovery to an unprecedented role as a limitation on the trial judge’s power to compel production of evidentiary matter at trial, I add the following.
I
Up until now the work-product doctrine of Hickman v. Taylor, supra, has been viewed almost exclusively as a limitation on the ability of a party to obtain pretrial discovery. It has not been viewed as a “limitation on the trial court’s broad discretion as to evidentiary questions at trial.” Ante, at 236. The problem discussed in Hickman v. Taylor arose precisely because, in addition to accelerating the time when a party could obtain evidentiary matter from his adversary, 1 the new Federal Rules of Civil Procedure greatly expanded the nature of the material subject to pretrial disclosure. 2 *244 Under the Rules, a party was, for the first time, entitled to know in advance his opponent’s evidence and was entitled to obtain from his opponent nonprivileged “information as to the existence or whereabouts of facts” relevant to a case even though the “information” was not itself evidentiary. Hickman v. Taylor, supra, at 501 . Utilizing these Rules, the plaintiff in Hickman v. Taylor sought discovery of statements obtained by defense counsel from witnesses to the events relevant to the lawsuit, not for evidentiary use but only “to help prepare himself to examine witnesses and to make sure that he ha[d] overlooked nothing.” 329 U. S., at 513 (emphasis added). In concluding that these statements should not be produced, the Court treated the matter entirely as one involving the plaintiff’s entitlement to pretrial discovery under the new Federal Rules, 3 and carefully limited its opinion accordingly. The relevant Rule in the Court’s view, Rule 26, on its face required production of the witness statements unless they were privileged. Nonetheless, the Court expressly stated that the request for witness statements was to be denied “not because the subject matter is privileged” (although noting that a work-product “privilege” applies in England, 329 U. S., at 510 n. 9) as that concept was used in the Rules, but because the request “falls outside the arena of discovery.” Id., at 510 (emphasis added). The Court stated that it is essential that a lawyer work with a certain degree of privacy, and concluded that the effect of giving one lawyer’s work (particularly his strategy, legal theories, and mental impressions) to another would have a “demoralizing” effect on the legal profession. The Court then noted that wit *245 ness statements might be admissible in evidence under some circumstances and might be usable to impeach or corroborate a witness. However, it concluded that in the case before it the plaintiff wanted the statements for preparation only and had shown no reason why he could not obtain everything he sought by doing his own work rather than utilizing that of his adversary.
The conclusion that the work product of a lawyer is not “privileged” made it much more difficult for the Court to support its result. Nothing expressed in the Rule supported its result, and the Court was forced to explain its decision by stating:
“When Rule 26 and the other discovery rules were adopted, this Court and the members of the bar in general certainly did not believe or contemplate that all the files and mental processes of lawyers were thereby opened to the free scrutiny of their adversaries.” Id., at 514 . (Emphasis added.)
I am left with the firm conviction that the Court avoided the easier route to its decision for a reason. To have held an attorney's work product to be “privileged” would have been to limit its use at trial as evidence in those cases in which the work product qualified as evidence, see Report of Proposed Amendments to Rules of Civil Procedure for the District Courts of the United States, 5 F. R. D. 433, 460 (1946), and, as Mr. Justice Jackson stated in his concurring opinion, a party is entitled to anything which is “evidence in his case.” 329 U. S., at 515 . 4
*246 Since Hickman v. Taylor, supra, Congress, the cases, and the commentators have uniformly continued to view the “work product” doctrine solely as a limitation on pretrial discovery and not as a qualified evidentiary privilege. In 1970, Congress became involved with the problem for the first time in the civil area. It did so solely by accepting a proposed amendment to Fed. Rule Civ. Proc. 26, which incorporated much of what the Court held in Hickman v. Taylor, supra, with respect to pretrial discovery. See Advisory Committee’s explanatory statement, 28 U. S. C. App., p. 7778. In the criminal area, Congress has enacted 18 U. S. C. § 3500 and accepted Fed. Rule Crim. Proc. 16 (c). The former prevents pretrial discovery of witness statements from the Government; the latter prevents pretrial discovery of witness statements from the defense. Neither limits the power of the trial court to order production as evidence of prior statements of witnesses who have testified at trial. 5
With the exception of materials of the type discussed in Part II, infra, research has uncovered no application of the work-product rule in the lower courts since Hickman to prevent production of evidence — impeaching or *247 otherwise — at trial; 6 and there are several examples of cases rejecting such an approach. 7
Similarly, the commentators have all treated the attorney work-product rule solely as a limitation on pretrial discovery, e. g., 4 J. Moore, Federal Practice ¶¶ 26.-63-26.64 (2d ed. 1974); 8 C. Wright & A. Miller, Federal Practice and Procedure § 2026 (1970); 2A W. Barron & A. Holtzoff, Federal Practice and Procedure § 652 (Wright ed. 1961), and some have expressly stated that it does not apply to evidentiary matter. F. James, Civil Procedure 211 n. 13 (1965); 4 J. Moore, Federal Practice ¶ 16.23 [8.-4] (1963).
The reasons for largely confining the work-product rule to its role as a limitation on pretrial discovery are compelling. First of all, the injury to the factfinding *248 process is far greater where a rule keeps evidence from the factfinder than when it simply keeps advance disclosure of evidence from a party or keeps from him leads to evidence developed by his adversary and which he is just as well able to find by himself. In the main, where a party seeks to discover a statement made to an opposing party in order to prepare for trial, he can obtain the “substantial equivalent ... by other means,” Fed. Rule Civ. Proc. 26 (b)(3), i. e., by interviewing the witness himself. A prior inconsistent statement in the possession of his adversary, however, when sought for evidentiary purposes — i. e., to impeach the witness after he testifies— is for that purpose unique. By the same token, the danger perceived in Hickman that each party to a case will decline to prepare in the hopes of eventually using his adversary’s preparation is absent when disclosure will take place only at trial. Indeed, it is very difficult to articulate a reason why statements on the same subject matter as a witness’ testimony should not be turned over to an adversary after the witness has testified. The statement will either be consistent with the witness’ testimony, in which case it will be useless and disclosure will be harmless; or it will be inconsistent and of unquestioned value to the jury. Any claim that disclosure of such a statement would lead the trial into collateral and confusing issues was rejected by this Court in Jencks v. United States, 353 U. S. 657 (1957), and by Congress in the legislation which followed.
The strong negative implication in Hickman v. Taylor, supra, that the work-product rule does not apply to evidentiary requests at trial became a holding in Jencks v. United States, supra. There a defendant in a criminal case sought production by the Government at trial of prior statements made by its witnesses on the same subject matter as their testimony. The Govern *249 ment argued, inter alia, that production would violate the “ ‘legitimate interest that each party- — including the Government — has in safeguarding the privacy of its files.’ ” 353 U. S., at 670 . The Court held against the Government. The Court said that to deny disclosure of prior statements which might be used to impeach the witnesses was to “deny the accused evidence relevant and material to his defense,” id., at 667 (emphasis added). Also rejected as unrealistic was any rule which would require the defendant to demonstrate the impeachment value of the prior statements before disclosure, 8 and the Court held that entitlement to disclosure for use in cross-examination is “established when the reports are shown to relate to the testimony of the witness.” Id., at 669 . Thus, not only did the Court reject the notion that there was a “work product” limitation on the trial judge’s discretion to order production of evidentiary matter at trial, but it was affirmatively held that prior statements of a witness on the subject of his testimony are the kind of evidentiary matter to which an adversary is entitled.
Indeed, even in the pretrial discovery area in which the work-product rule does apply, work-product notions have been thought insufficient to prevent discovery of evidentiary and impeachment material. In Hickman v. Taylor, 329 U. S., at 511 , the Court stated:
“We do not mean to say that all written materials obtained or prepared by an adversary’s counsel with an eye toward litigation are necessarily free from discovery in all cases. Where relevant and non- *250 privileged facts remain hidden in an attorney’s file and where production of those facts is essential to the preparation of one’s case, discovery may properly be had. Such written statements and documents might, under certain circumstances, be admissible in evidence or give clues as to the existence or location of relevant facts. Or they might be useful for purposes of impeachment or corroboration.” (Emphasis added.)
Mr. Justice Jackson, in concurring, was even more explicit on this point. See supra, at 245. Pursuant to this language, the lower courts have ordered evidence to be turned over pretrial even when it came into being as a result of the adversary’s efforts in preparation for trial. 9 A member of a defense team who witnesses an out-of-court statement of someone who later testifies at trial in a contradictory fashion becomes at that moment a witness to a relevant and admissible event, and the cases cited above would dictate disclosure of any reports he *251 may have written about the event. 10 Since prior statements are inadmissible hearsay until the witness testifies, there is no occasion for ordering reports of such statements produced as evidence pretrial. However, some courts have ordered witness statements produced pretrial in the likelihood that they will become impeachment evidence. 11 Moreover, where access to witnesses or to their information is unequal, discovery of their statements is often granted solely to help a party prepare for trial regardless of any eventual evidentiary value of the out-of-court statements. See Proposed Amendments to the Federal Rules of Civil Procedure Relating to Discovery, 48 F. R. D., at 501.
Accordingly, it would appear that with one exception to be discussed below, the work-product notions of Hickman v. Taylor, supra, impose no restrictions on the trial judge’s ordering production of evidentiary matter at trial; that these notions apply in only a very limited way, if at all, to a party’s efforts to obtain evidence pretrial pursuant to available discovery devices; and that these notions supply only a qualified discovery immunity with respect to witness statements in any event. 12
*252 II
In one of its aspects, the rule of Hickman v. Taylor, supra, has application to evidentiary requests at trial. Both the majority and the concurring opinions in Hickman v. Taylor were at pains to distinguish between production of statements written by the witness and in the possession of the lawyer, and those statements which were made orally by the witness and written down by the lawyer. Production and use of oral statements written down by the lawyer would create a substantial risk that the lawyer would have to testify. 13 The majority said that this would “make the attorney much less an officer *253 of the court and much more an ordinary witness.” 329 U. S., at 513 . Mr. Justice Jackson, in concurring, stated:
“Every lawyer dislikes to take the witness stand and will do so only for grave reasons. This is partly because it is not his role; he is almost invariably a poor witness. But he steps out of professional character to do it. He regrets it; the profession discourages it. But the practice advocated here is one which would force him to be a witness, not as to what he has seen or done but as to other witnesses’ stories, and not because he wants to do so but in self-defense.” Id., at 517 .
The lower courts, too, have frowned on any practice under which an attorney who tries a case also testifies as a witness, and trial attorneys have been permitted to testify only in certain circumstances. 14
The remarks of the Court in Hickman v. Taylor, supra, while made in the context of a request for pretrial discovery have application to the evidentiary use of lawyers’ memoranda of witness interviews at trial. It is unnecessary, however, to decide in this case whether the policies against putting in issue the credibility of the lawyer who will sum up to the jury outweigh the jury’s interest in obtaining all relevant information; and whether Jencks v. United States, supra, and 18 U. S. C. *254 § 3500 are to be viewed as expressing a preference for disclosure of all facts. 15 In this case, the creator of the memorandum was not the trial lawyer but an investigator 16 and he was, in any event, to be called as a witness by the defense. Accordingly, I would reverse the judgment below because, quite apart from waiver, the work-product rule of Hickman v. Taylor, supra, has no application to the request at trial for evidentiary and impeachment material made in this case.
Under criminal discovery rules the time factor is not as great as might otherwise appear. Federal Rule Crim. Proc. 16 permits discovery through the time of trial; and under Fed. Rule Crim. Proc. 17 (c), evidentiary matter may be obtained pursuant to subpoena in advance of trial in the discretion of the trial judge.
Prior to the Federal Rules, requests for witness statements were granted or denied on the basis of whether they were evidence and nonprivileged. In the main, production was denied, either because witness statements were not evidence (they are inadmissible hearsay until and unless the witness testifies); because a party is not entitled to advance knowledge of his adversary’s case; or because the statements were made by the client or his agent to his attorney and thus covered by the attorney-client- privilege. 4 J. Moore, Federal Practice ¶ 26.63 [3] (2d ed. 1974), and cases cited therein. The cases did not hold that witness statements were generally privileged, if they were evidentiary, and had no cause to decide whether a work-product notion should protect them from discovery, since they were nondiscoverable anyway under applicable discovery rules. But see Walker v. Struthers, 273 Ill. 387 , 112 N. E. 961 (1916).
Mr. Justice Jackson’s concurrence is even more express on this point. It states: “[T]he question is simply whether such a demand is authorized by the rules relating to various aspects of ‘discovery.’ ” 329 U. S., at 514 .
Mr. Justice Jackson also emphasized that the witness statements involved in Hickman v. Taylor were neither evidence nor privileged. Id., at 516 . Indeed, most of the material described by the Court as falling under the work-product umbrella does not qualify as evidence. A lawyer’s mental impressions are almost never evidence and *246 out-of-court statements of witnesses are generally inadmissible hearsay. Such statements become evidence only when the witness testifies at trial, and are then usually impeachment evidence only. This case, of course, involves a situation in which the relevant witness was to testify and thus presents the question — not involved in Hickman v. Taylor — whether prior statements should be disclosed under the trial judge’s power over evidentiary matters at trial.
In n. 13 of its opinion, the Court cites Fed. Rule Crim. Proc. 16 (c), as containing the work-product rule. In n. 10, the Court correctly notes that Rule 16 (c) is not “directed to the court’s control of evidentiary questions arising at trial.” It seems to me that this supplies a better ground for the Court’s decision than “waiver.”
The majority does cite one case, In re Terkeltoub, 256 F. Supp. 683 (SDNY 1966), in which the court referred to the work-product doctrine in preventing the Government from inquiring of a lawyer before the grand jury whether he had participated in suborning perjury of a prospective witness while preparing a criminal case for trial. In any event, a grand jury investigation is in some respects similar to pretrial discovery. Compare In re Grand Jury Proceedings (Duffy v. United States), 473 F. 2d 840 (CA8 1973), with Schwimmer v. United States, 232 F. 2d 855 (CA8), cert. denied, 352 U. S. 833 (1956). The proper scope of inquiry is as broad, and it can be used as a way of preparing for the later criminal trial. There is for example a split of authority on whether the work-product rule applies to IRS tax investigations. Compare United States v. McKay, 372 F. 2d 174 (CA5 1967), with United States v. Brown, 478 F. 2d 1038 (CA7 1973).
Shaw v. Wuttke, 28 Wis. 2d 448, 454-456 , 137 N. W. 2d 649, 652-653 (1965); State ex rel. State Highway Comm’n v. Steinkraus, 76 N. M. 617, 620-621, 417 P. 2d 431, 432-433 (1966); E. I. duPont de Nemours & Co. v. Phillips Petroleum Co., 24 F. R. D. 416 (Del. 1959); United States v. Matles, 154 F. Supp. 574 (EDNY 1957) ; United States v. Sun Oil Co., 16 F. R. D. 533 (ED Pa. 1954) ; United States v. Gates, 35 F. R. D. 524 (Colo. 1964).
The Court in Jencks quoted the language of Mr. Chief Justice Marshall in United States v. Burr, 25 F. Cas. 187, 191 (Va. 1807):
“ 'Now, if a paper be in possession of the opposite party, what statement of its contents or applicability can be expected from the person who claims its production, he not precisely knowing its contents?’ ” 353 U. S., at 668 n. 12.
Cummings v. Bell Telephone Co. of Pennsylvania, 47 F. R. D. 373 (ED Pa. 1968); Marks v. Gas Service Co., 168 F. Supp. 487 (WD Mo. 1958); Maginnis v. Westinghouse Electric Corp., 207 F. Supp. 739 (ED La. 1962); Julius Hyman & Co. v. American Motorists Ins. Co., 17 F. R. D. 386 (Colo. 1955); Parrett v. Ford Motor Co., 47 F. R. D. 22 (WD Mo. 1968); Scuderi v. Boston Ins. Co., 34 F. R. D. 463, 468 (Del. 1964) (each involving a situation in which a member of a litigation team witnessed an event or scene in the course of preparing a case for trial and the court ordered disclosure of his report of the event); Bourget v. Government Employees Ins. Co., 48 F. R. D. 29 (Conn. 1969); McCullough Tool Co. v. Pan Geo Atlas Corp., 40 F. R. D. 490 (SD Tex. 1966); O’Boyle v. Life Ins. Co. of North America, 299 F. Supp. 704 (WD Mo. 1969). Cf. LaRocca v. State Farm Mutual Automobile Ins. Co., 47 F. R. D. 278 (WD Pa. 1969), and Kennedy v. Senyo, 52 F. R. D. 34 (WD Pa. 1971) (in each of which the preparation for trial was the subject of the suit); see also Natta v. Hogan, 392 F. 2d 686, 693 (CA10 1968); F. James, Civil Procedure 211 (1965).
The holding in Jencks v. United States, 353 U. S. 657 (1957), would put to rest any claim that such prior statement would be disclosable only if the adversary established its evidentiary value ahead of time by specific proof that it was inconsistent.
Tetter v. Lovett, 44 F. R. D. 465 (WD Tex. 1968); McDonald v. Prowdley, 38 F. R. D. 1 (WD Mich. 1965); Tannenbaum v. Walker, 16 F. R. D. 570 (ED Pa. 1954); Fulton v. Swift, 43 F. R. D. 166 (Mont. 1967); Republic Gear Co. v. Borg-Warner Corp., 381 F. 2d 551, 557-558 (CA2 1967) (in camera inspection). Cf. Goosman v. A. Duie Pyle, Inc., 320 F. 2d 45 (CA4 1963). For cases contra see 4 J. Moore, Federal Practice ¶ 26.64 [3] n. 14 (2d ed. 1974).
The majority states:
“Moreover, the concerns reflected in the work-product doctrine do not disappear once trial has begun. Disclosure of an attorney’s
*252 efforts at trial, as surely as disclosure during pretrial discovery, could disrupt the orderly development and presentation of his case. We need not, however, undertake here to delineate the scope of the doctrine at trial, for in this instance it is clear that the defense waived such right as may have existed to invoke its protections.” Ante, at 239.
As noted above, the important question is not when the document in issue is created or even when it is to be produced. The important question is whether the document is sought for evidentiary or impeachment purposes or whether it is sought for preparation purposes only. Of course, a party should not be able to discover his opponent’s legal memoranda or statements of witnesses not called whether his request is at trial or before trial. Insofar as such a request is made under the applicable discovery rules, it is within the rule of Hickman v. Taylor even though made at trial. Insofar as the request seeks to invoke the trial judge’s discretion over evidentiary matters at trial, the rule of Hickman v. Taylor is unnecessary, since no one could ever suggest that legal memoranda or hearsay statements are evidence. If this is all the majority means by the above-quoted language, I agree.
If the witness does not acknowledge making an inconsistent statement to the lawyer — even though the lawyer recorded it — the cross-examiner may not offer the document in evidence without at least calling the lawyer as a witness to authenticate the document and Otherwise testify to the prior statement.
United States v. Porter, 139 U. S. App. D. C. 19, 429 F. 2d 203 (1970); United States v. Fiorillo, 376 F. 2d 180 (CA2 1967) ; Gajewski v. United States, 321 F. 2d 261 (CA8 1963), cert. den., 375 U. S. 968 (1964); United States v. Newman, 476 F. 2d 733 (CA3 1973); Travelers Ins. Co. v. Dykes, 395 F. 2d 747 (CA5 1968); United States v. Alu, 246 F. 2d 29 (CA2 1957); United States v. Chiarella, 184 F. 2d 903 , modified on rehearing, 187 F. 2d 12 (CA2 1950), vacated as to one petitioner, 341 U. S. 946 , cert, denied as to other petitioner sub nom. Stancin v. United States, 341 U. S. 956 (1951); United States v. Clancy, 276 F. 2d 617 (CA7 1960), rev’d on other grounds, 365 U. S. 312 (1961).
The cases have held records of witness statements made by prosecutors to be disclosable under 18 U. S. C. § 3500 , United States v. Hilbrich, 341 F. 2d 555 (CA7), cert. den., 381 U. S. 941 , reh. den., 382 U. S. 874 (1965), and 384 U. S. 1028 (1966); United States v. Aviles, 315 F. 2d 186 (CA2 1963); Saunders v. United States, 114 U. S. App. D. C. 345, 316 F. 2d 346 (1963); United States v. Smaldone, 484 F. 2d 311 (CA10 1973), cert. den., 415 U. S. 915 (1974). Cf. Canaday v. United States, 354 F. 2d 849 (CA8 1966). In State v. Bowen, 104 Ariz. 138 , 449 P. 2d 603 (1969), the court reached a contrary result under state law. .
A conflict arose among lower federal courts over the question whether the work product of members of a litigation team other than the lawyer was protected from discovery by the rule of Hickman v. Taylor, supra. Ghent, Development, Since Hickman v. Taylor, of Attorney’s “Work Product” Doctrine, 35 A. L. R. 3d 438-440 (§§ 7 [a] and [b]) and 453-455 (§§ 15 [a] and [b]) (1971); Proposed Amendments to the Federal Rules of Civil Procedure Relating to Discovery, 48 F. R. D. 487, 501-502 (1970). With respect to discovery in civil cases under Fed. Rule Civ. Proc. 26, the conflict was resolved in the 1970 amendments by affording protection to documents by a party’s “representative,” whether a lawyer or not. Where the purpose of the rule protecting the work product is to remove the incentive a party might otherwise have to rely solely on his opponent’s preparation, it is sensible to treat preparation by an attorney and an investigator alike. However, the policy against lawyers testifying applies only to the lawyer who tries the case.