Facts Remain Discoverable

Facts Remain Discoverable

Rule 26(b)(3)(A) protects "documents and tangible things" prepared in anticipation of litigation or for trial, and the same words mark where the protection stops.¹ The rule shelters items, not the information inside them. A fact does not become immune because a lawyer gathered it, wrote it down, or learned it while preparing for trial. Even when every condition from the earlier sections is met, a party cannot block interrogatories or depositions that seek the facts its opponent has acquired, the persons from whom the opponent obtained them, or the existence or nonexistence of documents. Only the documents themselves keep a qualified immunity.² Courts put the point the same way: work-product protection typically applies only to documents and tangible things, "and not to facts within the documents."³

The facts of Hickman v. Taylor show the line at work. After an accident that killed crew members, the survivors testified at a public hearing before the Steamboat Inspectors, and that testimony was recorded and made available to all interested parties. Shortly afterward the lawyer, Fortenbaugh, privately interviewed the survivors and took signed statements "with an eye toward the anticipated litigation." He also interviewed other people and, in some cases, wrote memoranda of what they told him.⁴ Two bodies of material therefore existed. The first was the public record, which anyone could use, since the survivors had already been examined in the open.⁵ The second was Fortenbaugh's file of statements and memoranda. The facts the survivors knew were never locked inside that file.

The file stays protected for a reason. A memorandum of an interview records whom the lawyer chose to question, what each person said, and what the lawyer thought worth writing down. If an opponent could demand it, the opponent would be working, in Justice Jackson's words, "on wits borrowed from the adversary."⁶ A request for the facts borrows nothing, because the requester must still find the witnesses, weigh what they say, and build its own case. Protecting the facts would also swallow discovery whole, since lawyers learn most facts in the course of preparing a case.⁷

Interrogatories are the usual route to those facts. A party must answer on the basis of all the information available to it, including what it can draw from its lawyer's work. That is why a requester can reach the facts contained in work-product documents by sending interrogatories to the party for whom the documents were prepared, as in Hickman, where the party was Fortenbaugh's client. The party must make a reasonable inquiry, which may include interviewing employees and reviewing documents, and must certify that it has done so by signing the answers.⁸ A party cannot answer "we don't know" when its lawyer does.

Exam questions often hide a trap in the second request. The tempting objection is that the answer would reveal only what counsel learned in preparing the case, and that this makes it work product. The objection fails. In the warehouse example, suppose the operator's only knowledge of what the foreman saw comes from the lawyer's interview. The operator must still reveal it, because the doctrine does not protect facts from discovery even when they are learned through trial preparation.⁹

A car-crash example draws the same line inside one fact pattern. Defense counsel obtains a written statement from a passenger. The plaintiff can reach the statement only by showing substantial need and undue hardship in obtaining its substantial equivalent, and a plaintiff who can simply ask the available, memory-intact passenger will rarely make that showing, so the statement stays protected. The passenger's existence as a witness is a different matter. The defendant must disclose it, either in initial disclosures, if she will use the passenger to support a claim or defense, or in answer to a properly served interrogatory.¹⁰ The interrogatory route covers the case where the defendant never plans to call the passenger, because the question asks only who knows the facts and demands nothing from counsel's file.

The line is finest when a request asks counsel to recount instead of asking the party to state. One court reasoned that requiring a party's counsel to reconstruct interviews with witnesses would raise all the concerns that troubled the Hickman Court.¹¹ The party owes the facts, and the persons who hold them, but not counsel's rendition of what each interview yielded, which is the point the earlier section on intangible work product developed.

Upjohn Co. v. United States, a privilege case, shows the same arrangement. The Government was free to question the employees who had communicated with the company's outside counsel, and the company gave the IRS a list of them. The IRS had already interviewed some 25. Subpoenaing the questionnaires and notes taken by the company's lawyers would have been more convenient, but convenience did not overcome the policies the privilege serves.¹² The pattern carries over to work product: the witnesses and the facts remain open to the opponent, while the lawyer's file is held back.