decided: November 23, 1949; As Amended February 3, 1950.
Before BIGGS, Chief Judge, and MARIS, McLAUGHLIN, O'CONNELL and KALODNER, Circuit Judges.
On amendment: Before BEGGS, Chief Judge and MARIS, McLAUGHLIN, and KALODNER, Circuit Judges.
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 which were overruled by the court and the respondent was directed to answer them. It thereupon filed answers, annexing copies of the statements of certain individuals, but declined to annex copies of statements of witnesses taken by agents of the Federal Bureau of Investigation.
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*fn1 did not require it to produce copies of the statements in question in answer to interrogatories but that such statements could only by required to be produced under Admiralty Rule 32*fn2 and only after the showing of good cause therefor, which that Rule requires, had been made. Secondly it urged that the statements of witnesses taken by agents of the Federal Bureau of Investigation of the Department of Justice were privileged within the rule laid down in Hickman v. Taylor, 1947, 329 U.S. 495, 67 S. Ct. 385, 91 L. Ed. 451, in that they represented the work product of Government lawyers. Finally it submitted a claim by the Attorney General of privilege against disclosure and asserted that the statements in question were confidential records of the Government as to which the privilege was absolute.
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 court followed its previous decisions*fn3 under Civil Procedure Rule 33, 28 U.S.C.A., which, prior to March 19, 1948, was identical with Admiralty Rule 31. Thus holding that the respondent was required by Admiralty Rule 31 to produce copies of the statements in question the court found it unnecessary to act upon the libellants' motions to produce those statements under Admiralty Rule 32. The court concluded, however, that it would be inappropriate to enter judgment by default against the United States because of its failure to comply with the court's order to answer the interrogatories. It decided instead that the appropriate action to take under Admiralty Rule 32C, in the light of the respondent's failure to comply, was to enter an order precluding the respondent from opposing the libellants' claims that their injuries were due to negligence on the part of the personnel of the respondent's vessel or the unseaworthiness of the vessel or both and that the libellants should recover their damages by reason of the matters alleged in the libels. The court accordingly entered an interlocutory decree in that form, reserving for further hearing and determination the actual amount of the damages to be awarded. O'Neill v. United States, D.C., 79 F.Supp. 827.
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? We accordingly turn to the consideration of this question.
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.*fn4 The many other district courts which have considered the question have, with virtual unanimity, taken the contrary view that the production of copies of statements of witnesses may not be compelled as of right under Admiralty Rule 31 or its counterpart Civil Procedure Rule 33*fn5 and that the production of such statements for examination or copying may only be compelled upon a showing of good cause therefor under Admiralty Rule 32 or its counterpart Civil Procedure Rule 34.*fn6 It is true that there are a few cases in some district courts in which production of such statements has been required in connection with interrogatories filed under Admiralty Rule 31 or Civil Procedure Rule 33 but in nearly all of those cases it appears that the court directed their production only after satisfying itself that the party asking for them had in fact shown good cause for their production.*fn7 Since the basic question is whether copies of such statements may be obtained as of right or whether good cause for their production must first be shown it is clear that these cases do not support the position of the court below. We think that such an overwhelming preponderance of view as to the proper construction to be placed upon these procedural rules by the courts whose duty it is to administer them must be given great weight.
Any discussion of this subject inevitably leads us back to the case of Hickman v. Taylor, in which both this court 1945, 3 Cir., 153 F.2d 212, and the Supreme Court, 1947, 329 U.S. 495, 67 S. Ct. 385, 91 L. Ed. 451, had occasion to give consideration to Civil Procedure Rules 33 and 34. That case was concerned with a narrower question than the one here posed, namely, whether the plaintiff had a right under any of the discovery rules to compel the defendants' lawyer to produce copies of statements which he had taken from prospective witnesses in the course of his preparation of his clients' defense. The plaintiff had demanded their production as of right. This court took the view that such statements were absolutely privileged against discovery. The Supreme Court held that the plaintiff was not entitled to discovery of them as of right, but went on to say 329 U.S. at pages 511, 512, 67 S. Ct. at page 394, 91 L. Ed. 451: "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-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 corrobaration. And production might be justified where the witnesses are no longer available or can be reached only with difficulty. Were production of written statements and documents to be precluded under such circumstances, the liberal ideals of the deposition-discovery portions of the Federal Rules of Civil Procedure would be stripped of much of their meaning. But the general policy against invading the privacy of an attorney's course of preparation is so well recognized and so essential to an orderly working of our system of legal procedure that a burden rests on the one who would invade that privacy to establish adequate reasons to justify production through a subpoena or court order. That burden, we believe, is necessarily implicit in the rules as now constituted."
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 ...