On February 7, 1943, the tugboat J.M. Taylor sank while engaged in towing a car float of the Baltimore & Ohio Railroad across the Delaware River at Philadelphia. The incident resulted in the death of five crew members. Anticipating litigation, the owners of the tug hired a law firm, and their attorneys conducted interviews with survivors and other witnesses and also obtained statements from representatives of the estates of two of the deceased crew members. One claimant brought suit against the tug owner and, during discovery, sent the following interrogatory: “State whether any statements of the members of the crews of the tugs J.M. Taylor and Philadelphia—another tug helping to tow the car float—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.” The law firm claimed that the information requested was privileged attorney work product.

CASE QUESTIONS

1. Should the information gathered by the law firm be made available, or is an attorney’s work product privileged and not subject to discovery?

2. If an attorney’s work product is declared privileged in corporate-versus-individual cases, does this give a corporate defendant a tremendous advantage in a suit by an individual plaintiff? That is, can the corporate defendant create a veil of secrecy over all the pertinent facts it can collect after the claim arises by merely asserting that such facts have been gathered by its large staff of attorneys?

3. In its decision, the U.S. Supreme Court said, “Historically, a lawyer is an officer of the court and is bound to work for the advancement of justice while faithfully protecting the rightful interests of his clients. In performing his various duties, however, it is essential that a lawyer work with a
certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel.” Do you agree or disagree with this position? Why or why not?