On amendment: Before BEGGS, Chief Judge and MARIS, McLAUGHLIN, and KALODNER, Circuit Judges.
MARIS, Circuit Judge.
The question with which we are confronted at the outset in this appeal, and the only one which we find necessary to decide, is whether copies of statements of prospective witnesses taken by a party to an admiralty suit may be obtained by the adverse party by interrogatories served under Admiralty Rule 31, 28 U.S.C.A., without a prior showing of good cause therefor.
In the consolidated admiralty suits now before us, which were brought by two seamen against the United States and the United States Maritime Commission for personal injuries, the libellants served interrogatories upon the United States as respondent. One of the interrogatories served by each libellant directed the respondent to "Attach hereto true and correct copies of all written statements (signed or unsigned) from any and all persons including the libellant who purport to be witnesses or have any knowledge regarding the said accident and/or injuries or any matter connected therewith or related thereto, including statements taken by the Federal Bureau of Investigation." The respondent filed objections to these interrogatories
Thereafter the libellants moved under Admiralty Rule 32C for judgment in their favor because of the respondent's failure to answer the interrogatories by annexing copies of the statements in question as ordered by the court. At the hearing of this motion the libellants also filed a motion under Admiralty Rule 32 for the production of the statements which the respondent had declined to annex to its answers.
The respondent opposed the libellants' motions for judgment upon three grounds. It urged first that Admiralty Rule 31
The district court ruled against the respondent on all three grounds, holding (1) that Admiralty Rule 31 required the respondent to furnish copies of the statements in question as a part of its answers, (2) that the statements were not privileged under the rule of Hickman v. Taylor, and (3) that they were not otherwise privileged as confidential records of the Government. In construing Admiralty Rule 31 as applicable to the production of copies of such statements the district
Such an interlocutory decree in admiralty being appealable under 28 U.S.C.A. § 1292 (3), the respondent promptly appealed from it to this court. Upon that appeal it appeared that the recitals contained in the interlocutory decree were in conflict with certain of the facts of the proceeding as disclosed by the record. We accordingly vacated the decree and remanded the case to the district court for further proceedings. 3 Cir., 174 F.2d 931. Upon remand the district court reformed its interlocutory decree by an appropriate modification of the recitals to which we had referred and thereupon reentered it. The appeal now before us was taken by the respondent from the interlocutory decree as amended and reentered.
The present appeal was directed to be heard by the court in banc pursuant to 28 U.S.C.A. § 46(c). That subsection provides that a court of appeals in banc shall consist of all active circuit judges of the circuit. In the Third Circuit seven active circuit judges are authorized by 28 U.S. C.A. § 44(a), as amended. When the appeal came on for hearing only five circuit judges were present, however, This was because Circuit Judge Goodrich was then engaged in judicial duty in the Ninth Circuit under an assignment by the Chief Justice of the United States and there was a vacancy in the court which had not then been filled. We are satisfied, however, that the five circuit judges who sat in this case and who have participated in its consideration and decision constitute a quorum of the court in banc and are, therefore, entitled to act as such. For while paragraph (c) of 28 U.S.C.A. § 46 does say that a court in banc consists of all active circuit judges of the circuit, paragraph (d) of the same section provides that a majority of the number of judges authorized to constitute a court or division thereof under paragraph (c) shall constitute a quorum. The number of judges authorized under paragraph (c) to constitute the United States Court of Appeals for the Third Circuit in banc being seven, four or more of them are clearly a quorum under paragraph (d).
As stated at the outset, the question raised by this appeal with which we are first confronted is this: Was the district court right in construing Admiralty Rule 31 as permitting the libellants, without any showing of good cause, to compel the respondent in answer to interrogatories to produce copies of written statements of prospective witnesses taken by its agents or was the respondent right in its contention that the applicable rule in such a case is Admiralty Rule 32 under which such statements are required to be produced only upon a prior showing of good cause therefor by the party demanding their production?
At the beginning of our consideration we note that the court below, the United States District Court for the Eastern District of Pennsylvania, stands almost alone in the construction which it has placed upon these Rules.
Any discussion of this subject inevitably leads us back to the case of Hickman v.
In support of the proposition last quoted the Court in footnote 10 to its opinion cited Civil Procedure Rule 34. But Civil Procedure Rule 34 (and Admiralty Rule 32) is not directed to documents in counsel's files alone. Indeed it makes no reference to counsel's files. On the contrary, the Rule refers to all documents in the possession, custody or control of the adverse party and, as the Supreme Court pointed out in the footnote 329 U.S. at page 512, 67 S.Ct. at page 394, 91 L.Ed. 451, "Rule 34 is explicit in its requirements that a party show good cause before obtaining a court order directing another party to produce documents." Since, as the Court also pointed out 329 U.S. at page 505, 67 S.Ct. at page 391, 91 L.Ed. 451, the "deposition-discovery rules create integrated procedural devices", this we believe to be a recognition by the Court that the production by a party of any documents, either for mere inspection or for obtaining a copy, is predicated upon first showing good cause therefor and consequently is to be obtained only by proceeding under Civil Procedure Rule 34 (or Admiralty Rule 32). This seems to have been in the Court's mind when it said 329 U.S. at page 504, 67 S.Ct. at page 390, 91 L.Ed. 451: "Here production was sought of documents prepared by a party's attorney after the claim has arisen. Rule 33 does not make provision for such production, even when sought in connection with permissible interrogatories."
Certainly this was the view of Justice Jackson when, in his concurring opinion, in which Justice Frankfurter joined, he said 329 U.S. at page 519, 67 S.Ct. at page 397, 91 L.Ed. 451: "Production of such statements are governed by Rule 34 and on `showing good cause therefor' the court may order their inspection, copying or photographing."
In discussing the nature of the petitioner's request in the Hickman case the Supreme Court said 329 U.S. at pages 508, 509, 67 S.Ct. at pages 392, 91 L.Ed. 451: "Petitioner has made more than an ordinary
While the language of the Supreme Court was here necessarily directed to statements obtained personally by Fortenbaugh as counsel for the adverse party, since only such statements were involved in the Hickman case, we think that its rationale has a much broader sweep and applies to all statements of prospective witnesses which a party has obtained for his trial counsel's use. For since, as the Court held, statements of prospective witnesses obtained by a lawyer are not protected by the historic privilege inherent in the lawyer-client relationship and are only protected against disclosure if the adverse party cannot show good cause for their production, we can see no logical basis for making any distinction between statements of witnesses secured by a party's trial counsel personally in preparation for trial and those obtained by others for the use of the party's trial counsel. In each case the statements are obtained in preparation for litigation and ultimately find their way into trial counsel's files for his use in representing his client at the trial. The adverse party could certainly have no greater or different need for copies of the statements in the one case than in the other. In each case he has had the same opportunity through interrogatories to learn all the pertinent facts which his opponent has gleaned from the witnesses as well as the names and addresses of those witnesses so that he himself may interview them or secure their dispositions if he wishes.
Certainly no valid distinction can be based on the fact that in the one case trial counsel does all the work of preparation for trial, including the interviewing of witnesses, while in the other case he is assisted by others employed by him or by his client. Indeed to make such a distinction would discriminate in favor of the party whose lawyer himself does all the work of preparation for trial and against the one whose counsel delegates part of that task to others. In either situation, the rationale of the opinion of the Supreme Court in the Hickman case requires that the same showing of good cause for the production of such statements of witnesses should be made by the adverse party seeking copies of them. This necessarily means that their production is to be had under Civil Procedure Rule 34 (or Admiralty Rule 32) upon a showing of good cause rather than as a matter of right under Civil Procedure Rule 33 (or Admiralty Rule 31).
We think, therefore, that to the extent that the Supreme Court was called upon in Hickman v. Taylor to consider the question now before us it rejected the construction of Civil Procedure Rule 33 (and Admiralty Rule 31) which the court below
Moreover, now that we have been called upon to decide the precise point the full consideration which we have given to it convinces us that the integrated scheme of the discovery rules as well as their actual language compels the conclusion that the construction which we placed upon them by way of dictum in the Hickman case, and which the court below has followed, is wrong. Admiralty Rules 31 and 32 and their counterparts Civil Procedure Rules 33 and 34, are directed to the discovery which a party to a suit may compel the adverse party to make. These two Rules show a clear distinction between obtaining answers to interrogatories and compelling the production of documents either for inspection or in order to obtain copies. In the one case answers may be compelled as of right if the interrogatories relate to relevant unprivileged matters. In the other case just cause must be shown, as the Supreme Court indicated in the Hickman case, for reaching into an opponent's files in order to see, or obtain a copy of, a document which, being by hypothesis relevant to the controversy, is almost certainly one of the documents with which the opponent's trial attorney is working in preparing his client's case. Since Admiralty Rule 31 and Civil Procedure Rule 33 are wholly silent as to the production of documents while Admiralty Rule 32 and Civil Procedure Rule 34 are directly and primarily concerned with their production for both inspection and copying, we think, construing them together, that the subject is covered solely by the latter to the exclusion of the former. Thus construed the Rules are fully integrated in this respect.
To hold that a party can compel the production of a copy of a document under Admiralty Rule 31 or Civil Procedure Rule 33 in answer to an interrogatory would render virtually meaningless the express provision of Admiralty Rule 32 and Civil Procedure 34 that production of a document may be compelled under that Rule to permit the copying of it by the moving party. For if a party can compel the adverse party to furnish him with a copy of a desired document under Admiralty Rule 31 or Civil Procedure Rule 33 as of right and at the adverse party's expense, it is hardly likely that he would assume the burden under Admiralty Rule 32 or Civil Procedure Rule 34 of having to show good cause for its production only to have to assume the additional burden of having to make the copy of it at his own expense.
A construction of the two Rules which would permit a party to obtain a copy of a document as of right under Admiralty Rule 31 or Civil Procedure Rule 33 but would compel him to show good cause under Admiralty Rule 32 or Civil Procedure Rule 34 to see the original would border on the capricious. For it would require a showing of good cause only in case a party desired visually to examine the document as to its form but not when he sought information as to its contents. In common experience, however, the contents of most documents are of much more importance to the parties than their physical form. It would surely require explicit language to compel a construction of the Rules which would make it more difficult for a party to ascertain the form of a document than to discover its substance and effect.
We think that the court below may have been led to its conclusion in part by its misapprehension of the scope of interrogatories
As we understand Civil Procedure Rule 33 and Admiralty Rule 31 a party is entitled as of right to compel his adversary to make a full disclosure of all of the facts which the latter has learned which are relevant to the subject matter of the pending action and unprivileged, including information as to relevant statements and other documents in his control and the names and addresses of all persons having knowledge of relevant facts whom he or his agents have interviewed. The Rules, however, do not give a party an absolute right to obtain either the text or a resume of the statements which the adverse party has obtained from the persons whom he or his agents have seen. Having obtained information as to the existence, nature and location of the statements through interrogatories he is in position to move for their production under Civil Procedure Rule 34 or Admiralty Rule 32. But he must in every case make the showing of good cause required by those Rules for their production. In other words he must show that there are special circumstances in his particular case which make it essential to the preparation of his case and in the interest of justice that the statements be produced for his inspection or copying. His counsel's natural desire to learn the details of his adversary's preparation for trial, to take advantage of his adversary's industry in seeking out and interviewing prospective witnesses, to help prepare himself to examine witnesses or to make sure that he has overlooked nothing are certainly not such special circumstances since they are present in every case. As Justice Jackson aptly said in his concurring opinion in the Hickman case 329 U.S. at page 516, 67 S.Ct. at page 396, 91 L.Ed. 451, in commenting on the petitioner's argument that the Rules were intended to do away with the old situation where a law suit developed into a battle of wits between counsel, "a common law trial is and always should be an adversary proceeding. Discovery was hardly intended to enable a learned profession to perform its functions either without wits or on wits borrowed from the adversary."
We conclude for the reasons which we have stated that the libellants in this case were not entitled, as of right, under Admiralty Rule 31 to the copies of the statements which the district court ordered the respondent to furnish them in answer to interrogatories under that Rule. By reason of the respondent's failure to furnish them the court entered against it the interlocutory decree now under appeal. In so doing the court erred and its interlocutory decree must, therefore, be reversed. Upon remand and further consideration of the libellants' motions for the production of the statements in question under Admiralty Rule 32, if that motion is pressed, the district court will be required to exercise its judgment as to whether the libellants have shown good cause, that is, have demonstrated that the special circumstances of their cases make it essential to the preparation of their cases, for them to see and copy the statements sought.
The decree of the district court will be reversed and the causes will be remanded for further proceedings not inconsistent with this opinion.
"Upon motion of any party showing good cause therefor and upon notice to all other parties, the court in which an action is pending may (1) order any party to produce and permit the inspection and copying or photographing, by or on behalf of the moving party, of any designated documents, papers, books, accounts, letters, photographs, objects, or tangible things, not privileged, which constitute or contain evidence material to any matter involved in the action and which are in his possession, custody, or control; or (2) order any party to permit entry upon designated land or other property in his possession or control for the purpose of inspecting, measuring, surveying, or photographing the property or any designated relevant object or operation thereon. The order shall specify the time, place, and manner of making the inspection and taking the copies and photographs and may prescribe such terms and conditions as are just."