HICKMAN v. TAYLOR, 329 U.S. 495 (1947)

329 U.S. 495

HICKMAN v.

TAYLOR et al. No. 47.

Argued Nov. 13, 1946. Decided Jan. 13, 1947.

[329 U.S. 495, 497] Mr.Abraham E. Freedman, of Philadelphia, Pa., for petitioner.

Messrs. William I. Radner, of Washington, D.C., and Samuel B. Fortenbaugh, Jr., of Philadelphia, Pa., for respondents.

Mr. Justice MURPHY delivered the opinion of the Court.

This case presents an important problem under the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, as to the extent to which a party may inquire into oral and written statements of witnesses, or other information, secured by an adverse party's counsel in the course of preparation for possible litigation after a claim has arisen. Examination into a person's files and records, including those resulting from the professional activities of an attorney, must be judged with care. It is not without reason that various safeguards have been established to preclude unwarranted excursions into the privacy of a man's work. At the same time, public policy supports reasonable and necessary inquiries. Properly to balance these competing interests is a delicate and difficult task. [329 U.S. 495, 498] On February 7, 1943, the tug 'J. M. Taylor' sank while engaged in helping to tow a car float of the Baltimore & Ohio Railroad across the Delaware River at Philadelphia. The accident was apparently unusual in nature, the cause of it still being unknown. Five of the nine crew members were drowned. Three days later the tug owners and the underwriters employed a law firm, of which responden Fortenbaugh is a member, to defend them against potential suits by representatives of the deceased crew members and to sue the railroad for damages to the tug.

A public hearing was held on March 4, 1943, before the United States Steamboat Inspectors, at which the four survivors were examined. This testimony was recorded and made available to all interested parties. Shortly thereafter, Fortenbaugh privately interviewed the survivors and took statements from them with an eye toward the anticipated litigation; the survivors signed these statements on March 29. Fortenbaugh also interviewed other persons believed to have some information relating to the accident and in some cases he made memoranda of what they told him. At the time when Fortenbaugh secured the statements of the survivors, representatives of two of the deceased crew members had been in communication with him. Ultimately claims were presented by representatives of all five of the deceased; four of the claims, however, were settled without litigation. The fifth claimant, petitioner herein, brought

suit in a federal court under the Jones Act on November 26, 1943, naming as defendants the two tug owners, individually and as partners, and the railroad.

One year later, petitioner filed 39 interrogatories directed to the tug owners. The 38th interrogatory read: 'State whether any statements of the members of the crews of the Tugs 'J. M. Taylor' and 'Philadelphia' or of any other vessel were taken in connection with the towing of the car float and the sinking of the Tug 'John M. Tay- [329 U.S. 495, 499] lor'.

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.'

Supplemental interrogatories asked whether any oral or written statements, records, reports or other memoranda had been made concerning any matter relative to the towing operation, the sinking of the tug, the salvaging and repair of the tug, and the death of the deceased. If the answer was in the affirmative, the tug owners were then requested to set forth the nature of all such records, reports, statements or other memoranda.

The tug owners, through Fortenbaugh, answered all of the interrogatories except No. 38 and the supplemental ones just described. While admitting that statements of the survivors had been taken, they declined to summarize or set forth the contents. They did so on the ground that such requests called 'for privileged matter obtained in preparation for litigation' and constituted 'an attempt to obtain indirectly counsel's private files.' It was claimed that answering these requests 'would involve practically turning over not only the complete files, but also the telephone records and, almost, the thoughts of counsel.'

In connection with the hearing on these objections, Fortenbaugh made a written statement and gave an informal oral deposition explaining the circumstances under which he had taken the statements. But he was not expressly asked in the deposition to produce the statements. The District Court for the Eastern District of Pennsylvania, sitting en banc, held that the requested matters were not privileged. 4 F.R.D. 479. The court then decreed that the tug owners and Fortenbaugh, as counsel and agent for the tug owners forthwith 'Answer Plaintiff's 38th interrogatory and supplemental interrogatories; produce all written statements of witnesses obtained by Mr. Fortenbaugh, as counsel and agent for Defendants; [329 U.S. 495, 500] state in substance any fact concerning this case which Defendants learned through oral statements made by witnesses to Mr. Fortenbaugh whether or not included in his private memoranda and produce Mr. Fortenbaugh's memoranda containing statements of fact by witnesses or to submit these memoranda to the Court for determination of those portions which should be revealed to Plaintiff.' Upon their refusal, the court adjudged them in contempt and ordered them imprisoned until they complied.

The Third Circuit Court of Appeals, also sitting en banc, reversed the judgment of the District Court. 153 F.2d 212. It held that the information here sought was part of the 'work product of the lawyer' and hence privileged from discovery under the Federal Rules of Civil Procedure. The importance of the problem, which has engendered a great divergence of views among district courts,1 led us to grant certiorari. 328 U.S. 876 , 66 S.Ct. 1337

The pre-trial deposition-discovery mechanism established by Rules 26 to 37 is one of the most significant innovations of the Federal Rules of Civil Procedure. Under the prior federal practice, the pre-trial functions of notice-giving issue-formulation and fact-revelation were performed primarily and inadequately by the pleadings. 2 Inquiry into the issues and the facts before trial was [329 U.S. 495, 501] narrowly confined and was often cumbersome in method. 3 The new rules, however, restrict the pleadings to the task of general notice-giving and invest the deposition-discovery process with a vital role in the preparation for trial. The various instruments of discovery now serve (1) as a device, along with the pre-trial hearing under Rule 16, to narrow and clarify the basic issues between the parties, and (2) as a device for ascertaining the facts, or information as to the existence or whereabouts of facts, relative to those issues. Thus civil trials in the federal courts no longer need be carried on in the dark. The way is now clear, consistent with recognized privileges, for the parties to obtain the fullest possible knowledge of the issues and facts before trial. 4

There is an initial question as to which of the deposition-discovery rules is involved in this case. Petitioner, in filing his interrogatories, thought that he was proceeding under Rule 33. That rule provides that a party may serve upon any adverse party written interrogatories to be answered by the party served. 5 The District Court pro- [329 U.S. 495, 502] ceeded on the same assumption in its opinion, although its order to produce and its contempt order stated that both Rules 33 and 34 were involved. Rule 34 establishes a procedure whereby, upon motion of any party showing good cause therefor and upon notice to all other parties, the court may order any party to produce and permit the inspection and copying or photographing of any designated documents, etc., not privileged, which constitute or contain evidence material to any matter involved in the action and which are in his possession, custody or control. 6

The Circuit Court of Appeals, however, felt that Rule 26 was the crucial one. Petitioner, it said, was proceeding by interrogatories and, in connection with those interrogatories, wanted copies of memoranda and statements secured from witnesses. While the court believed that Rule 33 was involved, at least as to the defending tug owners, it stated that this rule could not be used as the basis for condemning Fortenbaugh's failure to disclose or produce [329 U.S. 495, 503] the memoranda and statements, since the rule applies only to interrogatories addressed to adverse parties, not to their agents or counsel. And Rule 34 was said to be inapplicable since petitioner was not trying to see an original document and to copy or photograph it, within the scope of that rule. The court then concluded that Rule 26 must be the one really involved. That provides that the testimony of any person, whether a party or not, may be taken by any party by deposition upon oral examination or written interrogatories for the purpose of discovery or for use as evidence; and that the deponent may be examined regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether relating to the claim or defense of the examining party or of any other party, including the existence, description, nature, custody, condition and location of any books, documents or other tangible things. 7 [329 U.S. 495, 504] The matter is not without difficulty in light of the events that transpired below. We believe, however, that petitioner was proceeding primarily under Rule 33. He addressed simple interrogatories solely to the individual tug owners, the adverse parties, as contemplated by that rule. He did not, and could not under Rule 33, address such interrogatories to their counsel, Fortenbaugh. Nor did he direct these interrogatories either to the tug owners or to Fortenbaugh by way of deposition; Rule 26 thus could not come into operation. And it does not appear from the record that petitioner filed a motion under Rule 34 for a court order directing the producetion of the documents in question. Indeed, such an order could not have been entered as to Fortenbaugh

since Rule 34, like Rule 33, is limited to parties to the proceeding, thereby excluding their counsel or agents.

Thus to the extent that petitioner was seeking the production of the memoranda and statements gathered by Fortenbaugh in the course of his activities as counsel, petitioner misconceived his remedy. Rule 33 did not permit him to obtain such memoranda and statements as dejuncts to the interrogatories addressed to the individual tug owners. A party clearly cannot refuse to answer interrogatories on the ground that the information sought is solely within the knowledge of his attorney. But that is not this case. 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. Moreover, since petitioner was also foreclosed from securing them through an order under Rule 34, his only recourse was to take Fortenbaugh's deposition under Rule 26 and to attempt to force Fortenbaugh to produce the materials by use of a subpoena duces tecum in accordance with Rule 45. Holtzoff, 'Instruments of Discovery under the Federal Rules of Civil Procedure,' 41 [329 U.S. 495, 505] Mich.L.Rev. 205, 220. But despite petitioner's faulty choice of action, the District Court entered an order, apparently under Rule 34, commanding the tug owners and Fortenbaugh, as their agent and counsel, to produce the materials in question. Their refusal led to the anomalous result of holding the tug owners in contempt for failure to produce that which was in the possession of their counsel and of holding Fortenbaugh in contempt for failure to produce that which he could not be compelled to produce under either Rule 33 or Rule 34.

But under the circumstances we deem it unnecessary and unwise to rest our decision upon this procedural irregularity, an irregularity which is not strongly urged upon us and which was disregarded in the two courts below. It matters little at this later stage whether Fortenbaugh fails to answer interrogatories filed under Rule 26 or under Rule 33 or whether he refuses to produce the memoranda and statements pursuant to a subpoena under Rule 45 or a court order under Rule 34. The deposition-discovery rules create integrated procedural devices. And the basic question at stake is whether any of those devices may be used to inquire into materials collected by an adverse party's counsel in the course of preparation for possible litigation. The fact that the petitioner may have used the wrong method does not destroy the main thrust of his attempt. Nor does it relieve us of the responsibility of dealing with the problem raised by that attempt. It would be inconsistent with the liberal atmosphere surrounding these rules to insist that petitioner now go through the empty formality of pursuing the right procedural device only to reestablish precisely the same basic problem now confronting us. We do not mean to say, however, that there may not be situations in which the failure to proceed in accordance with a specific rule would be important or decisive. But in the present circumstances, for the purposes of this decision, the procedural [329 U.S. 495, 506] irregularity is not material. Having noted the proper procedure, we may accordingly turn our attention to the substance of the underlying problem.

In urging that he has a right to inquire into the materials secured and prepared by Fortenbaugh, petitioner emphasizes that the deposition- discovery portions of the Federal Rules of Civil Procedure are designed to enable the parties to discover the true facts and to compel their disclosure wherever they may be found. It is said that inquiry may be made under these rules, epitomized by Rule 26, as to any relevant matter which is not privileged; and since the discovery provisions are to be applied as broadly and liberally as possible, the

privilege limitation must be restricted to its narrowest bounds. On the premise that the attorney- client privilege is the one involved in this case, petitioner argues that it must be strictly confined to confidential communications made by a client to his attorney. And since the materials here in issue were secured by Fortenbaugh from third persons rather than from his clients, the tug owners, the conclusion is reached that these materials are proper subjects for discovery under Rule 26.

As additional support for this result, petitioner claims that to prohibit discovery under these circumstances would give a corporate defendant a tremendous advantage in a suit by an individual plaintiff. Thus in a suit by an injured employee against a railroad or in a suit by an insured person against an insurance company the corporate defendant could pull a dark veil of secrecy over all the petinent facts it can collect after the claim arises merely on the assertion that such facts were gathered by its large staff of attorneys and claim agents. At the same time, the individual plaintiff, who often has direct knowledge of the matter in issue and has no counsel until some time after his claim arises could be compelled to disclose all the intimate details of his case. By endowing with [329 U.S. 495, 507] immunity from disclosure all that a lawyer discovers in the course of his duties, it is said, the rights of individual litigants in such cases are drained of vitality and the lawsuit becomes more of a battle of deception than a search for truth.

But framing the problem in terms of assisting individual plaintiffs in their suits against corporate defendants is unsatisfactory. Discovery concededly may work to the disadvantage as well as to the advantage of individual plaintiffs. Discovery, in other words, is not a one-way proposition. It is available in all types of cases at the behest of any party, individual or corporate, plaintiff or defendant. The problem thus far transcends the situation confronting this petitioner. And we must view that problem in light of the limitless situations where the particular kind of discovery sought by petitioner might be used.

We agree, of course, that the deposition-discovery rules are to be accorded a broad and liberal treatment. No longer can the time-honored cry of 'fishing expedition' serve to preclude a party from inquiring into the facts underlying his opponent's case. 8 Mutual knowledge of all the relevant facts gathered by both parties is essential to proper litigation. To that end, either party may compel the other to disgorge whatever facts he has in his possession. The deposition-discovery procedure simply advances the stage at which the disclosure can be compelled from the time of trial to the period preceding it, thus reducing the possibility of surprise. But discovery, like all matters of procedure, has ultimate and necessary boundaries. As indicated by Rules 30(b) and (d) and 31(d), limitations inevitably arise when it can be shown [329 U.S. 495, 508] that the examination is being conducted in bad aith or in such a manner as to annoy, embarrass or oppress the person subject to the inquiry. And as Rule 26(b) provides, further limitations come into existence when the inquiry touches upon the irrelevant or encroaches upon the recognized domains of privilege.

We also agree that the memoranda, statements and mental impressions in issue in this case fall outside the scope of the attorney-client privilege and hence are not protected from discovery on that basis. It is unnecessary here to delineate the content and scope of that privilege as recognized in the federal courts. For present purposes, it suffices to note that the protective cloak of this privilege does not extend to information which an attorney secures from a witness while acting for his client in anticipation of litigation. Nor does this privilege

concern the memoranda, briefs, communications and other writings prepared by counsel for his own use in prosecuting his client's case; and it is equally unrelated to writings which reflect an attorney's mental impressions, conclusions, opinions or legal theories.

But the impropriety of invoking that privilege does not provide an answer to the problem before us. Petitioner has made more than an ordinary request for relevant, non-privileged facts in the possession of his adversaries or their counsel. He has sought discovery as of right of oral and written statements of witnesses whose identity is well known and whose availability to petitioner appears unimpaired. He has sought production of these matters after making the most searching inquiries of his opponents as to the circumstances surrounding the fatal accident, which inquiries were sworn to have been answered to the best of their information and belief. Interrogatories were directed toward all the events prior to, during and subsequent to the sinking of the tug. Full and honest answers to such broad inquiries would necessarily have included all [329 U.S. 495, 509] pertinent information gleaned by Fortenbaugh through his interviews with the witnesses. Petitioner makes no suggestion, and we cannot assume, that the tug owners or Fortenbaugh were incomplete or dishonest in the framing of their answers. In addition, petitioner was free to examine the public testimony of the witnesses taken before the United States Steamboat Inspectors. We are thus dealing with an attempt to secure the production of written statements and mental impressions contained in the files and the mind of the attorney Fortenbaugh without any showing of necessity or any indication or claim that denial of such production would unduly prejudice the preparation of petitioner's case or cause him any hardship or injustice. For aught that appears, the essence of what petitioner seeks either has been revealed to him already through the interrogatories or is readily available to him direct from the witnesses for the asking.

The District Court, after hearing objections to petitioner's request, commanded Fortenbaugh to produce all written statements of witnesses and to state in substance any facts learned through oral statements of witnesses to him. Fortenbaugh was to submit any memoranda he had made of the oral statements so that the court might determine what portions should be revealed to petitioner. All of this was ordered without any showing by petitioner, or any requirement that he make a proper showing, of the necessity for the production of any of this material or any demonstration that denial of production would cause hardship or injustice. The court simply ordered production on the theory that the facts sought were material and were not privileged as constituting attorney-client communications.

In our opinion, neither Rule 26 nor any oth r rule dealing with discovery contemplates production under such circumstances. That is not because the subject matter is privileged or irrelevant, as those concepts are used in these [329 U.S. 495, 510] rules. 9 Here is simply an attempt, without purported necessity or justification, to secure written statements, private memoranda and personal recollections prepared or formed by an adverse party's counsel in the course of his legal duties. As such, it falls outside the arena of discovery and contravenes the public policy underlying the orderly prosecution and defense of legal claims. Not even the most liberal of discovery theories can justify unwarranted inquiries into the files and the mental impressions of an attorney.

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 coun- [329 U.S. 495, 511] sel. Proper preparation of a client's case demands that he assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference. That is the historical and the necessary way in which lawyers act within the framework of our system of jurisprudence to promote justice and to protect their clients' interests. This work is reflected, of course, in interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and countless other tangible and intangible ways-aptly though roughly termed by the Circuit Court of Appeals in this case (153 F.2d 212, 223) as the 'Work product of the lawyer.' Were such materials open to opposing counsel on mere demand, much of what is now put down in writing would remain unwritten. An attorney's thoughts, heretofore inviolate, would not be his own. Inefficiency, unfairness and sharp practices would inevitably develop in the giving of legal advice and in the preparation of cases for trial. The effect on the legal profession would be demoralizing. And the interests of the clients and the cause of justice would be poorly served.

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 essentia 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. 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 [329 U.S. 495, 512] 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. 10

Rule 30(b), as presently written, gives the trial judge the requisite discretion to make a judgment as to whether discovery should be allowed as to written statements secured from witnesses. But in the instant case there was no room for that discretion to operate in favor of the petitioner. No attempt was made to establish any reason why Fortenbaugh should be forced to produce the written statements. There was only a naked, general demand for these materials as of right and a finding by the District Court that no recognizable privilege was involved. That was insufficient to justify discovery under these circumstances and the court should have sustained the refusal of the tug owners and Fortenbaugh to produce.

But as to oral statements made by witnesses to Fortenbaugh, whether presently in the form of his mental impressions or memoranda, we do not believe that any showing of necessity can be made under the circumstances of this case so as to justify production. Under ordinary conditions, forcing an attorney to repeat or write out all that witnesses have told him and to deliver the account [329 U.S. 495, 513] to his adversary gives rise to grave dangers of inaccuracy and untrustworthiness. No legitimate purpose is served by such production. The practice forces the attorney to testify as to what he remembers or what he saw fit to write

down regarding witnesses' remarks. Such testimony could not qualify as evidence; and to use it for impeachment or corroborative purposes would make the attorney much less an officer of the court and much more an ordinary witness. The standards of the profession would thereby suffer.

Denial of production of this nature does not mean that any material, non-privileged facts can be hidden from the petitioner in this case. He need not be unduly hindered in the preparation of his case, in the discovery of facts or in his anticipation of his opponents' position. Searching interrogatories directed to Fortenbaugh and the tug owners, production of written documents and statements upon a proper showing and direct interviews with the witnesses themselves all serve to reveal the facts in Fortenbaugh's possession to the fullest possible extent consistent with public policy. Petitioner's counsel frankly admits that he wants the oral statements only to help prepare himself to examine witnesses and to make sure that he has overlooked nothing. That is insufficient under the circumstances to permit him an exception to the policy underlying the privacy of Fortenbaugh's professional activities. If there should be a rare situation justifying production of these matters, petitioner's case is not of that type.

We fully appreciate the w de-spread controversy among the members of the legal profession over the problem raised by this case. 11 It is a problem that rests on what [329 U.S. 495, 514] has been one of the most hazy frontiers of the discovery process. But until some rule or statute definitely prescribes otherwise, we are not justified in permitting discovery in a situation of this nature as a matter of unqualified right. 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. And we refuse to interpret the rules at this time so as to reach so harsh and unwarranted a result.

We therefore affirm the judgment of the Circuit Court of Appeals.

AFFIRMED.

Summary of Hickman v. Taylor, 329 U.S. 495, 67 S. Ct. 385, 91 L. Ed. 451 (1947).

Facts

A tugboat sank killing five crew members. Hickman (P) brought this wrongful death lawsuit as representative of one of the deceased against Taylor et al. (Ds). The four survivors testified at a public hearing before the United States Steamboat Inspectors and their testimony was recorded and made available to all of the parties. The defendants conducted their own interviews of the survivors and others having information regarding the accident.

The defendants answered all interrogatories except for a summary of statements obtained in the course of their own interviews. The defendants contended that the requested summary pertained to “privileged matter obtained in preparation for litigation” and was therefore privileged.

Hickman objected and the district court held that the requested information was not privileged and ordered the defendants to produce it. Counsel for the defendants refused to comply and were held in contempt. The Court of Appeals reversed and the Supreme Court granted certiorari.

Issues

1. Do the Federal Rules of Civil Procedure pertaining to discovery require an attorney to produce oral and written statements or other information obtained in preparation for possible litigation after a claim has arisen?

2. Is information prepared or obtained by counsel in preparation for litigation after a claim has arisen protected by the attorney-client privilege?

Holding and Rule (Murphy)

1. No. In these circumstances, Rules 26, 33 and 34 of the Federal Rules of Civil Procedure do not require an attorney to produce oral and written statements or other information obtained in preparation for possible litigation after a claim has arisen.

2. No. Information prepared or obtained by counsel in preparation for litigation after a claim has arisen is not protected by the attorney-client privilege and is not protected from discovery on that basis.

Discovery of written materials obtained or prepared by opposing counsel in preparation for possible litigation may not be had unless the party seeking discovery can establish that relevant and non-privileged facts remain hidden in an attorney’s file, and where production of those facts is essential to the preparation of the party’s case.

Rule 30(b) gives the trial judge the requisite discretion to make a judgment as to whether discovery should be allowed as to written statements secured from witnesses. In this case however there was no ground for the exercise of that discretion in favor of the plaintiff.

The District Court erred in holding the defendants in contempt for failure to produce that which was in the possession of their counsel, and in holding their counsel in contempt for failure to produce that which he could not be compelled to produce under either Rule 33 or Rule 34.

Public Policy

The general policy against invading the privacy of an attorney’s course of preparation is 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. There must be some showing of necessity or justification by the party seeking its discovery. If relevant and nonprivileged facts remain hidden in an attorney’s file and the production of those facts is essential to the preparation of a case, discovery may be made.

Under the circumstances of this case, no showing of necessity could be made which would justify requiring the production of oral statements made by witnesses to counsel for the

defendants, whether presently in the form of his mental impressions or in the form of memoranda. Hickman had an adequate opportunity to seek discovery of the same facts particularly by the direct interviews of the witnesses and made no attempt to show why production was necessary.

Disposition

Judgment affirmed.

UPJOHN CO. v. UNITED STATES, 449 U.S. 383 (1981)

449 U.S. 383UPJOHN CO. ET AL. v. UNITED STATES ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

No. 79-886.

Argued November 5, 1980 Decided January 13, 1981

When the General Counsel for petitioner pharmaceutical manufacturing corporation (hereafter petitioner) was informed that one of its foreign subsidiaries had made questionable payments to foreign government officials in order to secure government business, an internal investigation of such payments was initiated. As part of this investigation, petitioner's attorneys sent a questionnaire to all foreign managers seeking detailed information concerning such payments, and the responses were returned to the General Counsel. The General Counsel and outside counsel also interviewed the recipients of the questionnaire and other company officers and employees. Subsequently, based on a report voluntarily submitted by petitioner disclosing the questionable payments, the Internal Revenue Service (IRS) began an investigation to determine the tax consequences of such payments and issued a summons pursuant to 26 U.S.C. 7602 demanding production of, inter alia, the questionnaires and the memoranda and notes of the interviews. Petitioner refused to produce the documents on the grounds that they were protected from disclosure by the attorney-client privilege and constituted the work product of attorneys prepared in anticipation of litigation. The United

States then filed a petition in Federal District Court seeking enforcement of the summons. That court adopted the Magistrate's recommendation that the summons should be enforced, the Magistrate having concluded, inter alia, that the attorney-client privilege had been waived and that the Government had made a sufficient showing of necessity to overcome the protection of the work-product doctrine. The Court of Appeals rejected the Magistrate's finding of a waiver of the attorney-client privilege, but held that under the so-called "control group test" the privilege did not apply "[t]o the extent that the communications were made by officers and agents not responsible for directing [petitioner's] actions in response to legal advice . . . for the simple reason that the communications were not the `client's.'" The court also held that the work-product doctrine did not apply to IRS summonses.

Held:

1. The communications by petitioner's employees to counsel are covered by the attorney-client privilege insofar as the responses to the [449 U.S. 383, 384] questionnaires and any notes reflecting responses to interview questions are concerned. Pp. 389-397.(a) The control group test overlooks the fact that such privilege exists to protect not only the giving of professional advice to those who can act on it but also the giving of information to the lawyer to enable him to give sound and informed advice. While in the case of the individual client the provider of information and the person who acts on the lawyer's advice are one and the same, in the corporate context it will frequently be employees beyond the control group (as defined by the Court of Appeals) who will possess the information needed by the corporation's lawyers. Middle-level - and indeed lower-level - employees can, by actions within the scope of their employment, embroil the corporation in serious legal difficulties, and it is only natural that these employees would have the relevant information needed by corporate counsel if he is adequately to advise the client with respect to such actual or potential difficulties. Pp. 390-392.(b) The control group test thus frustrates the very purpose of the attorney-client privilege by discouraging the communication of relevant information by employees of the client corporation to attorneys seeking to render legal advice to the client. The attorney's advice will also frequently be more significant to noncontrol employees than to those who officially sanction the advice, and the control group test makes it more difficult to convey full and frank legal advice to the employees who will put into effect the client corporation's policy. P. 392.(c) The narrow scope given the attorney-client privilege by the Court of Appeals not only makes it difficult for corporate attorneys to formulate sound advice when their client is faced with a specific legal problem but also threatens to limit the valuable efforts of corporate counsel to ensure their client's compliance with the law. Pp. 392-393.(d) Here, the communications at issue were made by petitioner's employees to counsel for petitioner acting as such, at the direction of corporate superiors in order to secure legal advice from counsel. Information not available from upper-echelon management was needed to supply a basis for legal advice concerning compliance with securities and tax laws, foreign laws, currency regulations, duties to shareholders, and potential litigation in each of these areas. The communications concerned matters within the scope of the employees' corporate duties, and the employees themselves were sufficiently aware that they were being questioned in order that the corporation could obtain legal advice. Pp. 394-395.2. The work-product doctrine applies to IRS summonses. Pp. 397-402.(a) The obligation imposed by a tax summons remains subject to the traditional privileges and limitations, and nothing in the language [449 U.S. 383, 385] or legislative history of the IRS

summons provisions suggests an intent on the part of Congress to preclude application of the work-product doctrine. P. 398.(b) The Magistrate applied the wrong standard when he concluded that the Government had made a sufficient showing of necessity to overcome the protections of the work-product doctrine. The notes and memoranda sought by the Government constitute work product based on oral statements. If they reveal communications, they are protected by the attorney-client privilege. To the extent they do not reveal communications they reveal attorneys' mental processes in evaluating the communications. As Federal Rule of Civil Procedure 26, which accords special protection from disclosure to work product revealing an attorney's mental processes, and Hickman v. Taylor, 329 U.S. 495 , make clear, such work product cannot be disclosed simply on a showing of substantial need or inability to obtain the equivalent without undue hardship. P. 401.600 F.2d 1223, reversed and remanded.REHNQUIST, J., delivered the opinion of the Court, in which BRENNAN, STEWART, WHITE, MARSHALL, BLACKMUN, POWELL, and STEVENS, JJ., joined, and in Parts I and III of which BURGER, C. J., joined. BURGER, C. J., filed an opinion concurring in part and concurring in the judgment, post, P. 402.

Daniel M. Gribbon argued the cause and filed briefs for petitioners.

Deputy Solicitor General Wallace argued the cause for respondents. With him on the brief were Solicitor General McCree, Assistant Attorney General Ferguson, Stuart A. Smith, and Robert E. Lindsay. *

[ Footnote * ] Briefs of amici curiae urging reversal were filed by Leonard S. Janofsky, Leon Jaworski, and Keith A. Jones for the American Bar Association; by Thomas G. Lilly, Alfred F. Belcuore, Paul F. Rothstein, and Ronald L. Carlson for the Federal Bar Association; by Erwin N. Griswold for the American College of Trial Lawyers et al.; by Stanley T. Kaleczyc and J. Bruce Brown for the Chamber of Commerce of the United States; and by Lewis A. Kaplan, James N. Benedict, Brian D. Forrow, John G. Koeltl, Standish Forde Medina, Jr., Renee J. Roberts, and Marvin Wexler for the Committee on Federal Courts et al.

William W. Becker filed a brief for the New England Legal Foundation as amicus curiae. [449 U.S. 383, 386]

JUSTICE REHNQUIST delivered the opinion of the Court.

We granted certiorari in this case to address important questions concerning the scope of the attorney-client privilege in the corporate context and the applicability of the work-product doctrine in proceedings to enforce tax summonses. 445 U.S. 925 . With respect to the privilege question the parties and various amici have described our task as one of choosing between two "tests" which have gained adherents in the courts of appeals. We are acutely aware, however, that we sit to decide concrete cases and not abstract propositions of law. We decline to lay down a broad rule or series of rules to govern all conceivable future questions in this area, even were we able to do so. We can and do, however, conclude that the attorney-

client privilege protects the communications involved in this case from compelled disclosure and that the work-product doctrine does apply in tax summons enforcement proceedings.

I

Petitioner Upjohn Co. manufactures and sells pharmaceuticals here and abroad. In January 1976 independent accountants conducting an audit of one of Upjohn's foreign subsidiaries discovered that the subsidiary made payments to or for the benefit of foreign government officials in order to secure government business. The accountants so informed petitioner Mr. Gerard Thomas, Upjohn's Vice President, Secretary, and General Counsel. Thomas is a member of the Michigan and New York Bars, and has been Upjohn's General Counsel for 20 years. He consulted with outside counsel and R. T. Parfet, Jr., Upjohn's Chairman of the Board. It was decided that the company would conduct an internal investigation of what were termed "questionable payments." As part of this investigation the attorneys prepared a letter containing a questionnaire which was sent to "All Foreign General and Area Managers" over the Chairman's signature. The letter [449 U.S. 383, 387] began by noting recent disclosures that several American companies made "possibly illegal" payments to foreign government officials and emphasized that the management needed full information concerning any such payments made by Upjohn. The letter indicated that the Chairman had asked Thomas, identified as "the company's General Counsel," "to conduct an investigation for the purpose of determining the nature and magnitude of any payments made by the Upjohn Company or any of its subsidiaries to any employee or official of a foreign government." The questionnaire sought detailed information concerning such payments. Managers were instructed to treat the investigation as "highly confidential" and not to discuss it with anyone other than Upjohn employees who might be helpful in providing the requested information. Responses were to be sent directly to Thomas. Thomas and outside counsel also interviewed the recipients of the questionnaire and some 33 other Upjohn officers or employees as part of the investigation.

On March 26, 1976, the company voluntarily submitted a preliminary report to the Securities and Exchange Commission on Form 8-K disclosing certain questionable payments. 1 A copy of the report was simultaneously submitted to the Internal Revenue Service, which immediately began an investigation to determine the tax consequences of the payments. Special agents conducting the investigation were given lists by Upjohn of all those interviewed and all who had responded to the questionnaire. On November 23, 1976, the Service issued a summons pursuant to 26 U.S.C. 7602 demanding production of:

"All files relative to the investigation conducted under the supervision of Gerard Thomas to identify payments to employees of foreign governments and any political [449 U.S. 383, 388] contributions made by the Upjohn Company or any of its affiliates since January 1, 1971 and to determine whether any funds of the Upjohn Company had been improperly accounted for on the corporate books during the same period."The records should include but not be limited to written questionnaires sent to managers of the Upjohn Company's foreign affiliates, and memorandums or notes of the interviews conducted in the United States and abroad with officers and employees of the Upjohn Company and its subsidiaries." App. 17a-18a.The company declined to produce the documents specified in the second paragraph on the grounds that they were protected from disclosure by the attorney-client privilege and constituted the work product of attorneys prepared in anticipation of litigation. On August 31, 1977, the United States filed a petition seeking enforcement of the summons under 26 U.S.C.

7402 (b) and 7604 (a) in the United States District Court for the Western District of Michigan. That court adopted the recommendation of a Magistrate who concluded that the summons should be enforced. Petitioners appealed to the Court of Appeals for the Sixth Circuit which rejected the Magistrate's finding of a waiver of the attorney-client privilege, 600 F.2d 1223, 1227, n. 12, but agreed that the privilege did not apply "[t]o the extent that the communications were made by officers and agents not responsible for directing Upjohn's actions in response to legal advice . . . for the simple reason that the communications were not the `client's.'" Id., at 1225. The court reasoned that accepting petitioners' claim for a broader application of the privilege would encourage upper-echelon management to ignore unpleasant facts and create too broad a "zone of silence." Noting that Upjohn's counsel had interviewed officials such as the Chairman and President, the Court of Appeals remanded to the District Court so that a determination of who was [449 U.S. 383, 389] within the "control group" could be made. In a concluding footnote the court stated that the work-product doctrine "is not applicable to administrative summonses issued under 26 U.S.C. 7602." Id., at 1228, n. 13.

II

Federal Rule of Evidence 501 provides that "the privilege of a witness . . . shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in light of reason and experience." The attorney-client privilege is the oldest of the privileges for confidential communications known to the common law. 8 J. Wigmore, Evidence 2290 (McNaughton rev. 1961). Its purpose is to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice. The privilege recognizes that sound legal advice or advocacy serves public ends and that such advice or advocacy depends upon the lawyer's being fully informed by the client. As we stated last Term in Trammel v. United States, 445 U.S. 40, 51 (1980): "The lawyer-client privilege rests on the need for the advocate and counselor to know all that relates to the client's reasons for seeking representation if the professional mission is to be carried out." And in Fisher v. United States, 425 U.S. 391, 403(1976), we recognized the purpose of the privilege to be "to encourage clients to make full disclosure to their attorneys." This rationale for the privilege has long been recognized by the Court, see Hunt v. Blackburn, 128 U.S. 464, 470 (1888) (privilege "is founded upon the necessity, in the interest and administration of justice, of the aid of persons having knowledge of the law and skilled in its practice, which assistance can only be safely and readily availed of when free from the consequences or the apprehension of disclosure"). Admittedly complications in the application of the privilege arise when the client is a corporation, which in theory is an artificial creature of the [449 U.S. 383, 390] law, and not an individual; but this Court has assumed that the privilege applies when the client is a corporation, United States v. Louisville & Nashville R. Co., 236 U.S. 318, 336 (1915), and the Government does not contest the general proposition.

The Court of Appeals, however, considered the application of the privilege in the corporate context to present a "different problem," since the client was an inanimate entity and "only the senior management, guiding and integrating the several operations, . . . can be said to possess an identity analogous to the corporation as a whole." 600 F.2d, at 1226. The first case to articulate the so-called "control group test" adopted by the court below, Philadelphia v. Westinghouse Electric Corp., 210 F. Supp. 483, 485 (ED Pa.), petition for mandamus and prohibition denied sub nom. General Electric Co. v. Kirkpatrick, 312 F.2d 742 (CA3 1962), cert. denied, 372 U.S. 943 (1963), reflected a similar conceptual approach:

"Keeping in mind that the question is, Is it the corporation which is seeking the lawyer's advice when the asserted privileged communication is made?, the most satisfactory solution, I think, is that if the employee making the communication, of whatever rank he may be, is in a position to control or even to take a substantial part in a decision about any action which the corporation may take upon the advice of the attorney, . . . then, in effect, he is (or personifies) the corporation when he makes his disclosure to the lawyer and the privilege would apply." (Emphasis supplied.)Such a view, we think, overlooks the fact that the privilege exists to protect not only the giving of professional advice to those who can act on it but also the giving of information to the lawyer to enable him to give sound and informed advice. See Trammel, supra, at 51; Fisher, supra, at 403. The first step in the resolution of any legal problem is ascertaining the factual background and sifting through the facts [449 U.S. 383, 391] with an eye to the legally relevant. See ABA Code of Professional Responsibility, Ethical Consideration 4-1:"A lawyer should be fully informed of all the facts of the matter he is handling in order for his client to obtain the full advantage of our legal system. It is for the lawyer in the exercise of his independent professional judgment to separate the relevant and important from the irrelevant and unimportant. The observance of the ethical obligation of a lawyer to hold inviolate the confidences and secrets of his client not only facilitates the full development of facts essential to proper representation of the client but also encourages laymen to seek early legal assistance."See also Hickman v. Taylor, 329 U.S. 495, 511 (1947).In the case of the individual client the provider of information and the person who acts on the lawyer's advice are one and the same. In the corporate context, however, it will frequently be employees beyond the control group as defined by the court below - "officers and agents . . . responsible for directing [the company's] actions in response to legal advice" - who will possess the information needed by the corporation's lawyers. Middle-level - and indeed lower-level - employees can, by actions within the scope of their employment, embroil the corporation in serious legal difficulties, and it is only natural that these employees would have the relevant information needed by corporate counsel if he is adequately to advise the client with respect to such actual or potential difficulties. This fact was noted in Diversified Industries, Inc. v. Meredith, 572 F.2d 596 (CA8 1978) (en banc):

"In a corporation, it may be necessary to glean information relevant to a legal problem from middle management or non-management personnel as well as from top executives. The attorney dealing with a complex legal problem `is thus faced with a "Hobson's choice". If he interviews employees not having "the very highest authority", [449 U.S. 383, 392] their communications to him will not be privileged. If, on the other hand, he interviews only those employees with "the very highest authority", he may find it extremely difficult, if not impossible, to determine what happened." Id., at 608-609 (quoting Weinschel, Corporate Employee Interviews and the Attorney-Client Privilege, 12 B. C. Ind. & Com. L. Rev. 873, 876 (1971)).The control group test adopted by the court below thus frustrates the very purpose of the privilege by discouraging the communication of relevant information by employees of the client to attorneys seeking to render legal advice to the client corporation. The attorney's advice will also frequently be more significant to noncontrol group members than to those who officially sanction the advice, and the control group test makes it more difficult to convey full and frank legal advice to the employees who will put into effect the client corporation's policy. See, e. g., Duplan Corp. v. Deering Milliken, Inc., 397 F. Supp. 1146, 1164 (SC 1974) ("After the lawyer forms his or her opinion, it is of no immediate benefit to the Chairman of the Board or the President. It must be given to the corporate personnel who will apply it").

The narrow scope given the attorney-client privilege by the court below not only makes it difficult for corporate attorneys to formulate sound advice when their client is faced with a specific legal problem but also threatens to limit the valuable efforts of corporate counsel to ensure their client's compliance with the law. In light of the vast and complicated array of regulatory legislation confronting the modern corporation, corporations, unlike most individuals, "constantly go to lawyers to find out how to obey the law," Burnham, The Attorney-Client Privilege in the Corporate Arena, 24 Bus. Law. 901, 913 (1969), particularly since compliance with the law in this area is hardly an instinctive matter, see, e. g., United States v. United States Gypsum Co., 438 U.S. 422, 440-441 (1978) ("the behavior proscribed by the [Sherman] Act is [449 U.S. 383, 393] often difficult to distinguish from the gray zone of socially acceptable and economically justifiable business conduct"). 2 The test adopted by the court below is difficult to apply in practice, though no abstractly formulated and unvarying "test" will necessarily enable courts to decide questions such as this with mathematical precision. But if the purpose of the attorney-client privilege is to be served, the attorney and client must be able to predict with some degree of certainty whether particular discussions will be protected. An uncertain privilege, or one which purports to be certain but results in widely varying applications by the courts, is little better than no privilege at all. The very terms of the test adopted by the court below suggest the unpredictability of its application. The test restricts the availability of the privilege to those officers who play a "substantial role" in deciding and directing a corporation's legal response. Disparate decisions in cases applying this test illustrate its unpredictability. Compare, e. g., Hogan v. Zletz, 43 F. R. D. 308, 315-316 (ND Okla. 1967), aff'd in part sub nom. Natta v. Hogan, 392 F.2d 686 (CA10 1968) (control group includes managers and assistant managers of patent division and research and development department), with Congoleum Industries, Inc. v. GAF Corp., 49 F. R. D. 82, 83-85 (ED Pa. 1969), aff'd, 478 F.2d 1398 (CA3 1973) (control group includes only division and corporate vice presidents, and not two directors of research and vice president for production and research). [449 U.S. 383, 394]

The communications at issue were made by Upjohn employees 3 to counsel for Upjohn acting as such, at the direction of corporate superiors in order to secure legal advice from counsel. As the Magistrate found, "Mr. Thomas consulted with the Chairman of the Board and outside counsel and thereafter conducted a factual investigation to determine the nature and extent of the questionable payments and to be in a position to give legal advice to the company with respect to the payments." (Emphasis supplied.) 78-1 USTC 9277, pp. 83,598, 83,599. Information, not available from upper-echelon management, was needed to supply a basis for legal advice concerning compliance with securities and tax laws, foreign laws, currency regulations, duties to shareholders, and potential litigation in each of these areas. 4 The communications concerned matters within the scope of the employees' corporate duties, and the employees themselves were sufficiently aware that they were being questioned in order that the corporation could obtain legal advice. The questionnaire identified Thomas as "the company's General Counsel" and referred in its opening sentence to the possible illegality of payments such as the ones on which information was sought. App. 40a. A statement of policy accompanying the questionnaire clearly indicated the legal implications of the investigation. The policy statement was issued "in order that there be no uncertainty in the future as to the policy with respect to the practices which are the subject of this investigation." [449 U.S. 383, 395] It began "Upjohn will comply with all laws and regulations," and stated that commissions or payments "will not be used as a subterfuge for bribes or illegal payments" and that all payments must be "proper and legal." Any future agreements with foreign distributors or agents were to be approved "by a company attorney" and any questions concerning the policy

were to be referred "to the company's General Counsel." Id., at 165a-166a. This statement was issued to Upjohn employees worldwide, so that even those interviewees not receiving a questionnaire were aware of the legal implications of the interviews. Pursuant to explicit instructions from the Chairman of the Board, the communications were considered "highly confidential" when made, id., at 39a, 43a, and have been kept confidential by the company.5 Consistent with the underlying purposes of the attorney-client privilege, these communications must be protected against compelled disclosure.

The Court of Appeals declined to extend the attorney-client privilege beyond the limits of the control group test for fear that doing so would entail severe burdens on discovery and create a broad "zone of silence" over corporate affairs. Application of the attorney-client privilege to communications such as those involved here, however, puts the adversary in no worse position than if the communications had never taken place. The privilege only protects disclosure of communications; it does not protect disclosure of the underlying facts by those who communicated with the attorney:

"[T]he protection of the privilege extends only to communications and not to facts. A fact is one thing and a communication concerning that fact is an entirely different [449 U.S. 383, 396] thing. The client cannot be compelled to answer the question, `What did you say or write to the attorney?' but may not refuse to disclose any relevant fact within his knowledge merely because he incorporated a statement of such fact into his communications to his attorney." Philadelphia v. Westinghouse Electric Corp., 205 F. Supp. 830, 831 (ED Pa. 1962).See also Diversified Industries, 572 F.2d, at 611; State ex rel. Dudek v. Circuit Court, 34 Wis. 2d 559, 580, 150 N. W. 2d 387, 399 (1967) ("the courts have noted that a party cannot conceal a fact merely by revealing it to his lawyer"). Here the Government was free to question the employees who communicated with Thomas and outside counsel. Upjohn has provided the IRS with a list of such employees, and the IRS has already interviewed some 25 of them. While it would probably be more convenient for the Government to secure the results of petitioner's internal investigation by simply subpoenaing the questionnaires and notes taken by petitioner's attorneys, such considerations of convenience do not overcome the policies served by the attorney-client privilege. As Justice Jackson noted in his concurring opinion in Hickman v. Taylor, 329 U.S., at 516 : "Discovery was hardly intended to enable a learned profession to perform its functions . . . on wits borrowed from the adversary."Needless to say, we decide only the case before us, and do not undertake to draft a set of rules which should govern challenges to investigatory subpoenas. Any such approach would violate the spirit of Federal Rule of Evidence 501. See S. Rep. No. 93-1277, p. 13 (1974) ("the recognition of a privilege based on a confidential relationship . . . should be determined on a case-by-case basis"); Trammel, 445 U.S., at 47 ; United States v. Gillock, 445 U.S. 360, 367 (1980). While such a "case-by-case" basis may to some slight extent undermine desirable certainty in the boundaries of the attorney-client [449 U.S. 383, 397] privilege, it obeys the spirit of the Rules. At the same time we conclude that the narrow "control group test" sanctioned by the Court of Appeals in this case cannot, consistent with "the principles of the common law as . . . interpreted . . . in the light of reason and experience," Fed. Rule Evid. 501, govern the development of the law in this area.

III

Our decision that the communications by Upjohn employees to counsel are covered by the attorney-client privilege disposes of the case so far as the responses to the questionnaires

and any notes reflecting responses to interview questions are concerned. The summons reaches further, however, and Thomas has testified that his notes and memoranda of interviews go beyond recording responses to his questions. App. 27a-28a, 91a-93a. To the extent that the material subject to the summons is not protected by the attorney-client privilege as disclosing communications between an employee and counsel, we must reach the ruling by the Court of Appeals that the work-product doctrine does not apply to summonses issued under 26 U.S.C. 7602. 6

The Government concedes, wisely, that the Court of Appeals erred and that the work-product doctrine does apply to IRS summonses. Brief for Respondents 16, 48. This doctrine was announced by the Court over 30 years ago in Hickman v. Taylor, 329 U.S. 495 (1947). In that case the Court rejected "an attempt, without purported necessity or justification, to secure written statements, private memoranda and personal recollections prepared or formed by an adverse party's counsel in the course of his legal duties." Id., at 510. The Court noted that "it is essential that a lawyer work with [449 U.S. 383, 398] a certain degree of privacy" and reasoned that if discovery of the material sought were permitted

"much of what is now put down in writing would remain unwritten. An attorney's thoughts, heretofore inviolate, would not be his own. Inefficiency, unfairness and sharp practices would inevitably develop in the giving of legal advice and in the preparation of cases for trial. The effect on the legal profession would be demoralizing. And the interests of the clients and the cause of justice would be poorly served." Id., at 511.The "strong public policy" underlying the work-product doctrine was reaffirmed recently in United States v. Nobles, 422 U.S. 225, 236 -240 (1975), and has been substantially incorporated in Federal Rule of Civil Procedure 26 (b) (3). 7 As we stated last Term, the obligation imposed by a tax summons remains "subject to the traditional privileges and limitations." United States v. Euge, 444 U.S. 707, 714 (1980). Nothing in the language of the IRS summons provisions or their legislative history suggests an intent on the part of Congress to preclude application of the work-product doctrine. Rule 26 (b) (3) codifies the work-product doctrine, and the Federal Rules of Civil Procedure are made applicable [449 U.S. 383, 399] to summons enforcement proceedings by Rule 81 (a) (3). See Donaldson v. United States, 400 U.S. 517, 528 (1971). While conceding the applicability of the work-product doctrine, the Government asserts that it has made a sufficient showing of necessity to overcome its protections. The Magistrate apparently so found, 78-1 USTC 9277, p. 83,605. The Government relies on the following language in Hickman:

"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 nonprivileged 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. . . . And production might be justified where the witnesses are no longer available or can be reached only with difficulty." 329 U.S., at 511 .The Government stresses that interviewees are scattered across the globe and that Upjohn has forbidden its employees to answer questions it considers irrelevant. The above-quoted language from Hickman, however, did not apply to "oral statements made by witnesses . . . whether presently in the form of [the attorney's] mental impressions or memoranda." Id., at 512. As to such material the Court did "not believe that any showing of necessity can be made under the circumstances of this case so as to justify production. . . . If there should be a rare

situation justifying production of these matters, petitioner's case is not of that type." Id., at 512-513. See also Nobles, supra, at 252-253 (WHITE, J., concurring). Forcing an attorney to disclose notes and memoranda of witnesses' oral statements is particularly disfavored because it tends to reveal the attorney's mental processes, 329 U.S., at 513 ("what he saw fit to write down regarding witnesses' remarks"); id., at 516-517 ("the statement would be his [the [449 U.S. 383, 400] attorney's] language, permeated with his inferences") (Jackson, J., concurring). 8 Rule 26 accords special protection to work product revealing the attorney's mental processes. The Rule permits disclosure of documents and tangible things constituting attorney work product upon a showing of substantial need and inability to obtain the equivalent without undue hardship. This was the standard applied by the Magistrate, 78-1 USTC 9277, p. 83,604. Rule 26 goes on, however, to state that "[i]n ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions or legal theories of an attorney or other representative of a party concerning the litigation." Although this language does not specifically refer to memoranda based on oral statements of witnesses, the Hickman court stressed the danger that compelled disclosure of such memoranda would reveal the attorney's mental processes. It is clear that this is the sort of material the draftsmen of the Rule had in mind as deserving special protection. See Notes of Advisory Committee on 1970 Amendment to Rules, 28 U.S.C. App., p. 442 ("The subdivision . . . goes on to protect against disclosure the mental impressions, conclusions, opinions, or legal theories . . . of an attorney or other representative of a party. The Hickman opinion drew special attention to the need for protecting an attorney against discovery of memoranda prepared from recollection of oral interviews. The courts have steadfastly safeguarded against disclosure of lawyers' mental impressions and legal theories . . ."). [449 U.S. 383, 401]

Based on the foregoing, some courts have concluded that no showing of necessity can overcome protection of work product which is based on oral statements from witnesses. See, e. g., In re Grand Jury Proceedings, 473 F.2d 840, 848 (CA8 1973) (personal recollections, notes, and memoranda pertaining to conversation with witnesses); In re Grand Jury Investigation, 412 F. Supp. 943, 949 (ED Pa. 1976) (notes of conversation with witness "are so much a product of the lawyer's thinking and so little probative of the witness's actual words that they are absolutely protected from disclosure"). Those courts declining to adopt an absolute rule have nonetheless recognized that such material is entitled to special protection. See, e. g., In re Grand Jury Investigation, 599 F.2d 1224, 1231 (CA3 1979) ("special considerations . . . must shape any ruling on the discoverability of interview memoranda . . .; such documents will be discoverable only in a `rare situation'"); cf. In re Grand Jury Subpoena, 599 F.2d 504, 511-512 (CA2 1979).

We do not decide the issue at this time. It is clear that the Magistrate applied the wrong standard when he concluded that the Government had made a sufficient showing of necessity to overcome the protections of the work-product doctrine. The Magistrate applied the "substantial need" and "without undue hardship" standard articulated in the first part of Rule 26 (b) (3). The notes and memoranda sought by the Government here, however, are work product based on oral statements. If they reveal communications, they are, in this case, protected by the attorney-client privilege. To the extent they do not reveal communications, they reveal the attorneys' mental processes in evaluating the communications. As Rule 26 and Hickman make clear, such work product cannot be disclosed simply on a showing of substantial need and inability to obtain the equivalent without undue hardship.

While we are not prepared at this juncture to say that such material is always protected by the work-product rule, we [449 U.S. 383, 402] think a far stronger showing of necessity and unavailability by other means than was made by the Government or applied by the Magistrate in this case would be necessary to compel disclosure. Since the Court of Appeals thought that the work-product protection was never applicable in an enforcement proceeding such as this, and since the Magistrate whose recommendations the District Court adopted applied too lenient a standard of protection, we think the best procedure with respect to this aspect of the case would be to reverse the judgment of the Court of Appeals for the Sixth Circuit and remand the case to it for such further proceedings in connection with the work-product claim as are consistent with this opinion.

Accordingly, the judgment of the Court of Appeals is reversed, and the case remanded for further proceedings.

It is so ordered.

Brief Fact Summary. Upjohn Company (Petitioner) contended that certain questionnaires prepared as part of an internal company investigation were protected from disclosure by the attorney-client privilege.

Synopsis of Rule of Law. The attorney-client privilege may be applied to communications between all corporate employees and corporate counsel.

Facts. Respondent, manufacturers and sells pharmaceuticals. Independent accountants discovered that one of Respondent’s foreign subsidiaries made payments to or for the benefit of foreign government officials in order to secure governmental business. After in-house counsel had discussions with outside counsel, it was decided that an internal investigation would be conducted to determine the terms of the payments. Respondent voluntarily submitted a preliminary report to the Securities and Exchange Commission on Form 8-K disclosing certain questionable payments. A subsequent report was filed with the Internal Revenue Service (IRS), which conducted an investigation. The IRS issued a summons demanding the production of files used in the company’s internal investigation. The Respondent declined to produce the documents on the grounds that they were protected from disclosure by the attorney-client privilege and it constituted work product of attorneys prepared in anticipation of litigation. The United States then filed a petition seeking enforcement of the summons and the district court held that the summons should be enforced. Respondents appealed and the court of appeals rejected the district court’s finding that a waiver of the attorney-client privilege occurred, but agreed that the privilege did not apply to the extent the communications were made by officers and employees not responsible for directing the company’s actions in response to legal actions.

Issue. Whether the attorney-client privilege is applicable to communications between corporate employees and corporate counsel?

Held. Yes. Communications by Respondent’s employees to counsel are covered by the attorney-client privilege. The attorney-client privilege applies when the client is a corporation. The privilege must extend beyond those employees who are in the control group because they may possess information needed by the corporation’s lawyers. Thus, the court rejects the

control group test as it frustrates the purpose by discouraging the communication of relevant information by employees of the client to the attorney seeing legal advice for the client corporation. The control group test also makes it more difficult to convey full and frank legal advice to the employees who put the corporation’s policy into effect.

The Government fails to demonstrate a sufficient showing of necessity and unavailability by other means in order to justify the production of materials protected by the work product doctrine. No showing of necessity can overcome protection of work product, which is based on oral statement of witnesses. Here, the Government needed to prove a far stronger showing of necessity to overcome the work product doctrine.

Discussion. The purpose of the attorney-client privilege is to encourage full and frank communication between attorneys and their client. It therefore promotes broader public interests in the observance of law and administration of justice.

In Re Grand Jury Investigation No. 83-2-35, 723 F.2d 447 (6th Cir. 1983)U.S. Court of Appeals for the Sixth Circuit - 723 F.2d 447 (1983)

Argued June 23, 1983.Decided Dec. 7, 1983

Richard Durant, Detroit, Mich., for appellant.

Leonard R. Gilman, U.S. Atty., Detroit, Mich., F. William Soisson, Asst. U.S. Atty., for appellee.

Before ENGEL and KRUPANSKY, Circuit Judges, and CELEBREZZE, Senior Circuit Judge.

KRUPANSKY, Circuit Judge.

1

Attorney Richard Durant (Durant) appeals a finding of contempt for failure to disclose to the grand jury upon order of court the identity of his client. On March 1, 1983, Special Agent Edwards (Edwards), of the Federal Bureau of Investigation (FBI), visited Durant's office and explained that the FBI was investigating the theft of numerous checks made payable to International Business Machines, Inc. (IBM). He advised that a number of the stolen checks had been traced and deposited into various banking accounts under names of non-existent organizations, at least one of which included the initials "IBM". Edwards produced a photostatic copy of a check drawn upon one of these ficticious accounts which check was made payable to Durant's law firm. Upon FBI inquiry, Durant conceded that this check for $15,000 had been received and endorsed by his firm for services rendered to a client in two cases, one of which was "finished" and the other of which was "open". Durant refused to disclose the identity of his client to whose credit the proceeds had been applied, asserting the attorney-client privilege.

2

Durant was subpoenaed to appear before the grand jury the following day, March 2, 1983, where he again refused to identify his client, asserting the attorney-client privilege. The government immediately moved the United States District Court for the Eastern District of Michigan for an Order requiring Durant to provide the requested information. At a hearing that same afternoon, Durant informed the court that disclosure of his client's identity could incriminate that client in criminal activity so as to justify invoking the attorney-client privilege. Citing to the court: In re Grand Jury Appearance (Michaelson), 511 F.2d 882 (9th Cir.), cert. denied, 421 U.S. 978, 95 S.Ct. 1979, 44 L.Ed.2d 469 (1975); Baird v. Koerner, 279 F.2d 623 (9th Cir.1960). Durant additionally stated that "I do not know any of the facts about this theft or anything else", and suggested that the requested information should be obtained through other methods.1 The court adjudged that the privilege did not attach and ordered Durant to identify his client. Upon refusal to comply with this Order, Durant was held in contempt. Further proceedings (e.g. bond) were stayed until March 16, 1983, and subsequently stayed until March 22, 1983.

3

In an obvious attempt to ascertain the identity of Durant's client in an alternate manner, the United States issued a second subpoena to Durant on March 9, 1983, ordering him to appear before the grand jury on March 16, 1983, and produce the following documents:

4

A listing of all clients of the law firm of Durant & Durant, P.C., and Richard Durant as of February 18, 1983 including all clients with active cases and clients who owe fees or have provided a retainer to the firm and all client ledger cards and other books, records and documents reflecting or recording payments to the law firm for the period February 1, 1983 to March 1, 1983.

5

Durant moved to quash this subpoena duces tecum, again asserting the attorney-client privilege. At the March 22, 1983 hearing on this motion, Durant re-asserted that production of the subpoenaed documents could implicate his client in criminal activity. He additionally observed that the FBI had admitted before Durant and the district court judge in-chambers that an arrest would be effected by the FBI immediately following disclosure.2 In effect, the identity of Durant's client was the last link of evidence necessary to effect an indictment. The Court was advised for the first time by Durant that on March 2, 1983 the FBI requested, under threat of harassment, that Durant "breach" the attorney-client privilege and identify his client without informing the client.3

6

The Court was informed that disclosure of the requested information would not only implicate Durant's client in criminal activity, but it would implicate that client in the very criminal activity for which legal advice had been sought.

7

COURT: Do you contend and do you submit that the disclosure of the information which is sought by this subpoena, quote, would implicate your client in the very criminal activity for which legal advice was sought?

8

MR. DURANT: Yes, Your Honor, I do.

9

COURT: Other than--in what way do you contend that it would?

10

MR. DURANT: Sir, I'm in a catch-22 position again. I can't tell you. If I tell you, I have explained things that my client obviously doesn't wish to be disclosed.

11

COURT: All right.

12

Durant failed to move the court for an ex parte in camera submission of evidence or testimony to establish that his client had indeed sought legal advice relating to past criminal activity involving theft of IBM checks. Nor did the district court, sua sponte, suggest an ex parte in camera submission of evidence to probe Durant's blanket statements.

13

The United States then introduced the check into evidence in support of the proposition that it was improbable that Durant's client had engaged Durant's services to defend against impending charges of theft. A notation on the lower left hand corner of the check stated "corporate legal services". The United States observed "That doesn't say anything about crimes committed or to be committed or legal services in connection with criminal matters. It is 'corporate legal services'; no suggestion of any criminal investigation." It was additionally noted by the government that the FBI had not initiated the investigation nor had it been informed of the theft of the IBM checks until March 1st, approximately two weeks after the check had been received by Durant. Durant offered the following rebuttal:

14

I don't know when IBM knew it (i.e. knew that checks had been stolen), but Mr. Edwards, when he appeared at my office, told me that it did involve checks from IBM, and I said that on March 2nd, when I appeared here.

15

I think the mere fact that the check says for "corporate legal services" when it has been admitted by the U.S. Attorney that such a corporation doesn't even exist, it is a fictional entity, doesn't deny what I am representing to the Court.

16

The district court, opining that the issues joined in the first and second subpoenaes served upon Durant were "essentially the same", withheld a decision of Durant's motion to quash the second subpoena duces tecum pending appellate resolution of the court's contempt Order of March 2, 1983.

17

Confronting the applicability of the attorney-client privilege as urged by Durant, it is initially observed that the privilege is recognized in the federal forum. See: Fisher v. United States, 425 U.S. 391, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1975); Rule 501, Federal Rules of Evidence. The burden of establishing the existence of the privilege rests with the person asserting it. See: In re Walsh, 623 F.2d 489, 493 (7th Cir.), cert. denied, 449 U.S. 994, 101 S.Ct. 531, 66 L.Ed.2d 291 (1980); Liew v. Breen, 640 F.2d 1046, 1049 (9th Cir.1981); United States v. Stern, 511

F.2d 1364, 1367 (2nd Cir.1975); United States v. Landof, 591 F.2d 36, 38 (9th Cir.1978); In re Grand Jury Empanelled February 14, 1978 (Markowitz), 603 F.2d 469, 474 (3d Cir.1979); United States v. Hodgson, 492 F.2d 1175 (10th Cir.1974); United States v. Tratner, 511 F.2d 248, 251 (7th Cir.1975); United States v. Demauro, 581 F.2d 50, 55 (2d Cir.1978); United States v. Ponder, 475 F.2d 37, 39 (5th Cir.1973); United States v. Bartlett, 449 F.2d 700, 703 (8th Cir.1971), cert. denied, 405 U.S. 932, 92 S.Ct. 990, 30 L.Ed.2d 808 (1972). The attorney-client privilege exists

18

to protect confidential communications between a lawyer and his client in matters that relate to the legal interests of society and the client.

19

In re Grand Jury Proceedings (Fine), 641 F.2d 199, 203 (5th Cir.1981). Accord: In re Grand Jury Subpoena (Slaughter), 694 F.2d 1258, 1260 (11th Cir.1982); United States v. Hodge and Zweig, 548 F.2d 1347, 1353 (9th Cir.1977); In re Grand Jury Investigation (Tinari), 631 F.2d 17, 19 (3d Cir.1980), cert. denied, 449 U.S. 1083, 101 S.Ct. 869-70, 66 L.Ed.2d 808 (1981). The policy behind protecting confidential communications is self-evident:

20

In order to promote freedom of consultation of legal advisors by clients, the apprehension of compelled disclosure from the legal advisors must be removed; hence the law must prohibit such disclosure except on the client's consent.

21

Hodge & Zweig, supra, 548 F.2d at 1353, citing 8 J. Wigmore, Evidence, Sec. 2291 at 545 (McNaughton Rev.Ed.1961). Accord Fisher, supra, 425 U.S. at 403, 96 S.Ct. at 1577 ("The purpose of the privilege is to encourage clients to make full disclosure to their attorneys").4 See also: United States v. Goldfarb, 328 F.2d 280 (6th Cir.) cert. denied, 377 U.S. 976, 84 S.Ct. 1883, 12 L.Ed.2d 746 (1964).

22

Since the attorney-client privilege may serve as a mechanism to frustrate the investigative or fact-finding process, it creates an inherent tension with society's need for full and complete disclosure of all relevant evidence during implementation of the judicial process. See: In re Grand Jury Proceedings (Jones), 517 F.2d 666, 671-72, (5th Cir.1975) ("the purpose of the privilege--to suppress truth--runs counter to the dominant aims of law"). In particular, invocation of the privilege before the grand jury may jeopardize an effective and comprehensive investigation into alleged violations of the law, and thereby thwart that body's dual functions of determining "if there is probable cause to believe that a crime has been committed and of protecting citizens against unfounded criminal prosecutions." Branzburg v. Hayes, 408 U.S. 665, 686-87, 92 S.Ct. 2646, 2659, 33 L.Ed.2d 626 (1972).5 These competing societal interests demand that application of the privilege not exceed that which is necessary to effect the policy considerations underlying the privilege, i.e., "the privilege must be upheld only in those circumstances for which it was created." In re Walsh, supra, 623 F.2d at 492.

Accord: Fisher, supra, 425 U.S. at 403, 96 S.Ct. at 1577 ("it applies only where necessary to achieve its purpose.") As a derogation of the search for truth, the privilege is to be narrowly construed. See: United States v. Weger, 709 F.2d 1151, 1154 (7th Cir.1983); Baird v. Koerner, 279 F.2d 623, 631-32 (9th Cir.1960); United States v. Pipkins, 528 F.2d 559, 562-63 (5th Cir.1976).

23

The federal forum is unanimously in accord with the general rule that the identity of a client is, with limited exceptions, not within the protective ambit of the attorney-client privilege. See: In re Grand Jury Proceedings (Pavlick), 680 F.2d 1026, 1027 (5th Cir.1982) (en banc); In re Grand Jury Proceedings (Jones), 517 F.2d 666, 670-71 (5th Cir.1975); In re Grand Jury Proceedings (Fine), 641 F.2d 199, 204 (5th Cir.1981); Frank v. Tomlinson, 351 F.2d 384 (5th Cir.1965), cert. denied, 382 U.S. 1028, 86 S.Ct. 648, 15 L.Ed.2d 540 (1966); In re Grand Jury Witness (Salas), 695 F.2d 359, 361 (9th Cir.1982); In re Grand Jury Subpoenas Duces Tecum (Marger/Merenbach), 695 F.2d 363, 365 (9th Cir.1982); In re Grand Jury Proceedings (Lawson), 600 F.2d 215, 218 (9th Cir.1979).6

24

The Circuits have embraced various "exceptions" to the general rule that the identity of a client is not within the protective ambit of the attorney-client privilege. All such exceptions appear to be firmly grounded in the Ninth Circuit's seminal decision in Baird v. Koerner, 279 F.2d 623 (9th Cir.1960). In Baird the IRS received a letter from an attorney stating that an enclosed check in the amount of $12,706 was being tendered for additional amounts due from undisclosed taxpayers. When the IRS summoned the attorney to ascertain the identity of the delinquent taxpayers the attorney refused identification asserting the attorney-client privilege. The Ninth Circuit, applying California law, adjudged that the "exception" to the general rule as pronounced in Ex parte McDonough, 170 Cal. 230, 149 P. 566 (1915) controlled:

25

The name of the client will be considered privileged matter where the circumstances of the case are such that the name of the client is material only for the purpose of showing an acknowledgement of guilt on the part of such client of the very offenses on account of which the attorney was employed.

26

Baird, supra, 279 F.2d at 633. The identity of the Baird taxpayer was adjudged within this exception to the general rule. The Ninth Circuit has continued to acknowledge this exception:

27

A significant exception to this principle of non-confidentiality holds that such information may be privileged when the person invoking the privilege is able to show that a strong possibility exists that disclosure of the information would implicate the client in the very matter for which legal advice was sought in the first case.

28

In re Grand Jury Subpoenas Duces Tecum (Marger/Merenbach), 695 F.2d 363, 365 (9th Cir.1982). Accord: United States v. Hodge and Zweig, 548 F.2d 1347, 1353 (9th Cir.1977); In re Grand Jury Proceedings (Lawson), 600 F.2d 215, 218 (9th Cir.1979); United States v. Sherman, 627 F.2d 189, 190-91 (9th Cir.1980); In re Grand Jury Witness (Salas), 695 F.2d 359, 361 (9th Cir.1982). This exception, which can perhaps be most succinctly characterized as the "legal advice" exception, has also been recognized by other circuits. See: In re Walsh, 623 F.2d 489, 495 (7th Cir.), cert. denied, 449 U.S. 994, 101 S.Ct. 531, 66 L.Ed.2d 291 (1980); In re Grand Jury Investigation (Tinari), 631 F.2d 17, 19 (3d Cir.1980), cert. denied, 449 U.S. 1083, 101 S.Ct. 869-70, 66 L.Ed.2d 808 (1981). Since the legal advice exception is firmly grounded in the policy of protecting confidential communications, this Court adopts and applies its principles herein. See: In re Grand Jury Subpoenas Duces Tecum (Marger/Merenbach), supra.

29

It should be observed, however, that the legal advice exception may be defeated through a prima facie showing that the legal representation was secured in furtherance of present or intended continuing illegality, as where the legal representation itself is part of a larger conspiracy. See: In re Grand Jury Subpoenas Duces Tecum (Marger/Merenbach), supra, 695 F.2d at 365 n. 1; In re Walsh, 623 F.2d 489, 495 (7th Cir.), cert. denied, 449 U.S. 994, 101 S.Ct. 531, 66 L.Ed.2d 291 (1980); In re Grand Jury Investigation (Tinari), 631 F.2d 17, 19 (3d Cir.1980), cert. denied, 449 U.S. 1083, 101 S.Ct. 869, 66 L.Ed.2d 808 (1981); In re Grand Jury Proceedings (Lawson), 600 F.2d 215, 218 (9th Cir.1979); United States v. Friedman, 445 F.2d 1076, 1086 (9th Cir.1971). See also: Clark v. United States, 289 U.S. 1, 15, 53 S.Ct. 465, 469, 77 L.Ed. 993 (1933); In re Grand Jury Proceedings (Pavlick), 680 F.2d 1026, 1028-29 (5th Cir.1982) (en banc).

30

Another exception to the general rule that the identity of a client is not privileged arises where disclosure of the identity would be tantamount to disclosing an otherwise protected confidential communication. In Baird, supra, the Ninth Circuit observed:

31

If the identification of the client conveys information which ordinarily would be conceded to be part of the usual privileged communication between attorney and client, then the privilege should extend to such identification in the absence of other factors.

32

Id., 279 F.2d at 632. Citing Baird, the Fourth Circuit promulgated the following exception:

33

To the general rule is an exception, firmly bedded as the rule itself. The privilege may be recognized where so much of the actual communication has already been disclosed that identification of the client amounts to disclosure of a confidential communication.

34

NLRB v. Harvey, 349 F.2d 900, 905 (4th Cir.1965). Accord: United States v. Tratner, 511 F.2d 248, 252 (7th Cir.1975); Colton v. United States, 306 F.2d 633, 637 (2d Cir.1962), cert. denied, 371 U.S. 951, 83 S.Ct. 505, 9 L.Ed.2d 499 (1963); Tillotson v. Boughner, 350 F.2d 663, 666 (7th Cir.1965); United States v. Pape, 144 F.2d 778, 783 (2d Cir.1944). See also: Chirac v. Reinecker, 24 U.S. (11 Wheat) 280, 6 L.Ed. 474 (1826). The Seventh Circuit has added to the Harvey exception the following emphasized caveat:

35

The privilege may be recognized where so much of the actual communication has already been disclosed [not necessarily by the attorney, but by independent sources as well ] that identification of the client [or of fees paid ] amounts to disclosure of a confidential communication.

36

United States v. Jeffers, 532 F.2d 1101, 1115 (7th Cir.1976) (emphasis added). The Third Circuit, applying this exception, has emphasized that it is the link between the client and the communication, rather than the link between the client and the possibility of potential criminal prosecution, which serves to bring the client's identity within the protective ambit of the attorney-client privilege. See: In re Grand Jury Empanelled February 14, 1978 (Markowitz), 603 F.2d 469, 473 n. 4 (3d Cir.1979). Like the "legal advice" exception, this exception is also firmly rooted in principles of confidentiality.

37

Another exception, articulated in the Fifth Circuit's en banc decision of In re Grand Jury Proceedings (Pavlick), 680 F.2d 1026 (5th Cir.1982) (en banc),7 is recognized when disclosure of the identity of the client would provide the "last link" of evidence:

38

We have long recognized the general rule that matters involving the payment of fees and the identity of clients are not generally privileged. In re Grand Jury Proceedings, (United States v. Jones), 517 F.2d 666 (5th Cir.1975); see cases collected id. at 670 n. 2. There we also recognized, however, a limited and narrow exception to the general rule, one that obtains when the disclosure of the client's identity by his attorney would have supplied the last link in an existing chain of incriminating evidence likely to lead to the client's indictment.

39

Id. at 1027.8 Upon careful consideration this Court concludes that, although language exists in Baird to support viability of Pavlick's "last link" exception,9 the exception is simply not grounded upon the preservation of confidential communications and hence not justifiable to support the attorney-client privilege. Although the last link exception may promote concepts of fundamental fairness against self-incrimination, these concepts are not proper considerations to invoke the attorney-client privilege. Rather, the focus of the inquiry is whether disclosure of the identity would adversely implicate the confidentiality of communications. Accordingly, this Court rejects the last link exception as articulated in Pavlick.

40

Turning to the facts at bar, it is observed that Durant asserted three justifications for invocation of the attorney-client privilege. First, at the March 2 hearing, he stated that disclosure might possibly implicate the client in criminal activity. As this justification has no roots in concepts of confidentiality or communication, it cannot be advanced to support an abdication of the general rule that identity of a client is not privileged. Second, at the March 22 hearing, Durant informed the Court that the FBI had informed him that an arrest would be effected upon disclosure of the identity of Durant's client. This is simply an assertion that disclosure would provide the last link of evidence to support an indictment as articulated in Pavlick --a precedent which is herein rejected.

41

Third, at the March 22 hearing, Durant submitted that disclosure was justified under the "legal advice" exception embraced by the Ninth Circuit. Seeking to invoke this exception, it was incumbent upon Durant to "show that a strong possibility exist[ed] that disclosure of the information would implicate the client in the very matter for which legal advice [had been] sought in the first case". In re Grand Jury Subpoenas Duces Tecum (Marger/Merenbach), supra, 695 F.2d at 365 (emphasis added). A well recognized means for an attorney to demonstrate the existence of an exception to the general rule, while simultaneously preserving confidentiality of the identity of his client, is to move the court for an in camera ex parte hearing. See: In re Grand Jury Witness (Salas), supra, 695 F.2d at 362; (proper procedure to establish existence of "legal advice" exception was to make an in camera showing); In re Grand Jury Empanelled February 14, 1978 (Markowitz), supra, 603 F.2d at 474 (referring to procedure to be employed by an attorney who asserts Fifth Amendment privilege); In re Grand Jury Subpoena (Slaughter), supra, 694 F.2d at 1260 n. 2 (United States requested in its subpoena that any averred privileged matters be deleted and the original copy retained intact for possible in camera inspection by the district court); In re Walsh, supra, 623 F.2d at 494 n. 5; United States v. Tratner, supra, 511 F.2d at 252.

42

Since the burden of establishing the existence of the privilege rests with the party asserting the privilege, it is incumbent upon the attorney to move for an in camera ex parte hearing if one is desired. In the action sub judice, Durant failed to so move. Rather, he rested on his blanket assertion that his client had initially sought legal advice relating to matters involving the theft of IBM checks. Such unsupported assertions of privilege are strongly disfavored. See: United States v. Cromer, 483 F.2d 99, 102 (9th Cir.1973); United States v. Davis, 636 F.2d 1028, 1044 n. 20 (5th Cir.1981); In re Grand Jury Witness (Salas), supra, 695 F.2d at 362. Further, it is pertinent to observe that at the first hearing on March 2 Durant had expressly disavowed knowledge of the existence of stolen IBM checks. This statement significantly diminishes the credibility of Durant's subsequent March 22 representation that his client had indeed engaged Durant's services for past activity relating to stolen IBM checks. Accordingly, Durant clearly failed to satisfy his burden of demonstrating a "strong possibility" that disclosure of the identity of his client would implicate that client in the very manner for which legal advice had been initially sought.

43

Last, it is observed that Durant did not represent to the district court that disclosure of the identity of his client would amount to a disclosure of a confidential communication. See: NLRB v. Harvey, supra; United States v. Jeffers, supra. Not having advanced this exception to the general rule, it follows axiomatically that Durant failed to satisfy the burden of establishing its existence. Nor does the record suggest the viability of this exception so as to justify a remand.

44

In sum, Durant has failed to establish the existence of any exception to the general rule that disclosure of the identity of a client is not within the protective ambit of the attorney-client privilege. Therefore the contempt Order of the district court issued against Durant is hereby AFFIRMED.

United States of America, Plaintiff-appellee, v. Ana Luisa Gordon-nikkar, Defendant-appellant, 518 F.2d 972 (5th Cir. 1975)

U.S. Court of Appeals for the Fifth Circuit - 518 F.2d 972 (1975)

Sept. 5, 1975

Lewis S. Kimler, Miami, Fla. (court appointed), for defendant-appellant.Robert W. Rust, U. S. Atty., Miami, Fla., for plaintiff-appellee.Appeal from the United States District Court for the Southern District of Florida.Before COLEMAN, AINSWORTH and SIMPSON, Circuit Judges.AINSWORTH, Circuit Judge:1Appellant, Ana Gordon-Nikkar, was convicted after a trial by jury on all three counts of an indictment charging her with conspiracy to possess with intent to distribute approximately four kilograms of cocaine, and the substantive charges of possession with intent to distribute and distribution of the cocaine. 21 U.S.C. §§ 841(a)(1), 846. On appeal, appellant contends her conviction should be reversed because the district court permitted a Government witness, Brenda Marchand, to give testimony regarding allegedly privileged conversations between appellant's attorney and his clients, and because the trial court denied appellant's motion to quash the jury panel on account of the exclusion of resident aliens from grand and petit juries. We affirm.2

Brenda Marchand was charged as a codefendant with the crimes for which appellant was convicted. Marchand subsequently pled guilty on Count I of the indictment and testified at trial for the Government. Prior to entering her plea, Marchand had two meetings in the office of appellant's attorney, Mr. Estrumsa.1 On each of these occasions, several of the codefendants were present. Marchand, however, was not a client of Estrumsa, and it is unclear whether all the other persons in these meetings were Estrumsa's clients. Of the two conversations related by Marchand, the second was the subject of thorough cross-examination by Estrumsa. The second conversation involved Estrumsa's alleged recommendation that Marchand leave the country and go to Venezuela. On redirect, the Government inquired, over defense objection, into the substance of the conversation during the first meeting. Marchand testified that at this meeting the participants, at Mr. Estrumsa's suggestion, agreed to give perjured cover-up testimony at trial to the effect that none of them had possessed the cocaine, but instead merely happened to be at a party where the cocaine was discovered.

3

The principal issue in this regard is whether the statements in attorney Estrumsa's office were protected by the attorney-client privilege.2 There were at least five persons present at Estrumsa's office on this occasion; at least one of the persons, Brenda Marchand, and perhaps others, were not clients of Mr. Estrumsa. A communication divulged to "strangers" or outsiders can scarcely be considered a confidential communication between attorney and client. See In re Grand Jury Proceedings, 5 Cir., 1975,517 F.2d 666; United States v. Blackburn, 5 Cir., 1971, 446 F.2d 1089, 1091; International Business Machine Corp. v. Sperry Rand Corp., D.Del., 1968,44 F.R.D. 10, 12; United States v. United Shoe Machinery Corp., D.Mass., 1950, 89 F.Supp. 357, 358; 8 Wigmore on Evidence § 2311 (McNaughton

Rev.1961). Therefore, this communication is not protected by the attorney-client privilege. But even if it appeared that the communication in question were otherwise privileged (i. e., that the communication was considered confidential despite the presence of a stranger), the testimony was nonetheless admissible. The conversations in question dealt with plans to commit perjury so as to hide the criminal activity of appellant and others. It is beyond dispute that the attorney-client privilege does not extend to communications regarding an intended crime. See 8 Wigmore on Evidence § 2298 (McNaughton Rev.1961) and cases cited; Pollock v. United States, 5 Cir., 1953, 202 F.2d 281, 286. The policy underlying the attorney-client privilege is to promote the administration of justice. It would be a perversion of the privilege to extend it so as to protect communications designed to frustrate justice by committing other crimes to conceal past misdeeds.

4

Appellant next argues that the trial court erroneously refused to quash the petit jury venire as requested on the ground that the exclusion therefrom of resident aliens deprived her of her right to trial before a jury representing a fair cross-section of the community. The right and duty to act as grand or petit jurors is presently reserved to citizens. "Any citizen of the United States . . . is competent to serve as a grand or petit juror." 28 U.S.C. § 1861 (emphasis added). See also 28 U.S.C. § 1865. This statutory mandate serves to exclude otherwise eligible resident aliens from jury service. All defendants at the trial below were of Cuban origin. Defense counsel alleged to the trial court that in Miami, where the trial took place, 30 per cent of the city's population are resident aliens, mostly of Cuban descent. It is contended that the exclusion of otherwise eligible resident aliens under these circumstances deprived appellant of a fair trial.

5

It is true that the Supreme Court has held that the Sixth Amendment right to an impartial jury encompasses a fundamental right to trial by a jury which is a truly representative cross-section of the community. Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975); see Peters v. Kiff, 407 U.S. 493, 498, 92 S.Ct. 2163, 2166, 33 L.Ed.2d 83 (1972); Glasser v. United States, 315 U.S. 60, 86, 62 S.Ct. 457, 472, 86 L.Ed. 680 (1942).3 Despite this requirement, however, "it has never been thought that federal juries must be drawn from a cross-section of the total population without the imposition of any qualifications." United States v. McVean, 5 Cir., 1971, 436 F.2d 1120, 1122, cert. denied, 404 U.S. 822, 92 S.Ct. 45, 30 L.Ed.2d 50 (emphasis in original). Thus, if citizenship is a reasonable qualification for jury duty and resident aliens may properly be excluded from jury service, no Sixth Amendment violation results from such an exclusion. The "truly representative cross-section" requirement encompasses only individuals qualified to serve as jurors. Our inquiry is thus whether the Government can constitutionally impose citizenship as a qualification for jury service.

6

In a series of cases as recent as 1973, the Supreme Court has held that aliens are protected by the Equal Protection Clause of the Fourteenth Amendment, and that classifications based on alienage are inherently suspect and subject to close judicial scrutiny. In re Griffiths, 413 U.S. 717, 93 S.Ct. 2851, 37 L.Ed.2d 910 (1973); Sugarman v. Dougall, 413 U.S. 634, 93 S.Ct. 2842, 37 L.Ed.2d 853 (1973); Graham v. Richardson, 403 U.S. 365, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971); Takahashi v. Fish and Game Commission,334 U.S. 410, 68 S.Ct. 1138,

92 L.Ed. 1478 (1948); cf. Truax v. Raich, 239 U.S. 33, 36 S.Ct. 7, 60 L.Ed. 131 (1915); Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886). While all the previous cases involved challenges based on the Equal Protection Clause of the Fourteenth Amendment to discrimination by states on the basis of alienage, the same analysis is applicable to the Due Process Clause of the Fifth Amendment, which relates to classifications by the Federal Government. See Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1953). If a classification is invalid under the Equal Protection Clause of the Fourteenth Amendment, it is also invalid under the Due Process Clause of the Fifth Amendment. Johnson v. Robinson,415 U.S. 361, 363 n. 4, 94 S.Ct. 1160, 1164 n. 4, 39 L.Ed.2d 289 (1974); see Richardson v. Belcher, 404 U.S. 78, 81, 92 S.Ct. 254, 257, 30 L.Ed.2d 231 (1971). Because alienage is a suspect classification, the Federal Government must therefore demonstrate that it has a compelling state interest in confining the selection of jurors to those who are citizens.

7

The precise issue before this court was considered in Perkins v. Smith, D.Md., 1974, 370 F.Supp. 134 (three-judge court), appeal docketed,43 U.S.L.W. 3001 (U.S., June 21, 1974) (Docket No. 73-1915).4 In Perkins, the court held that there was a compelling state interest in restricting jury service to citizens, and upheld the federal statutory scheme excluding non-citizens from jury service. We agree with the court's conclusion that there was a compelling interest "in ensuring that persons who serve as jurors are personally committed to the proper application and enforcement of the laws of the United States" which therefore justifies the exclusion of aliens. Perkins v. Smith, supra, 370 F.Supp. at 142 (concurring opinion). The following discussion from Perkins is pertinent:

8

In maintaining the jury system as "the very palladium of free government" the states logically can anticipate that native-born citizens would be conversant with the social and political institutions of our society, the customs of the locality, the nuances of local tradition and language. Likewise naturalized citizens, who have passed through the citizenship classes sponsored by the Immigration and Naturalization Service, have demonstrated a basic understanding of our form of government, history and traditions. There is no corresponding basis for assuming that resident aliens, who owe allegiance not to any state or to the federal government, but are subjects of a foreign power, have so assimilated our societal and political mores that an equal reliance could be placed on their performing as well as citizens the duties of jurors in our judicial system.

9

The nature of the operation of juries makes it apparent that persons unfit for jury service can work a great deal of harm, through inability or malice, to efficiency and fairness. Jury deliberations are perhaps the most secret form of decision-making in the nation; the means of persuasion used by jurors on each other are never revealed. A single juror who failed to understand the import of the evidence being presented or who lacked any concern for the fairness of the outcome could severely obstruct or distort the course of justice. A single persuasive and unprincipled juror could even direct the course of justice into channels deliberately chosen for their deleterious effect on this country. We conclude, therefore, that the state has a compelling interest in the restriction of jury service to those who will be loyal to, interested in, and familiar with, the customs of this country.

10

Resident aliens by definition have not yet been admitted to citizenship. Until they become citizens, they remain in most cases legally bound to the country of their origin. Nothing is to prevent their return to that country, or a move to yet a third nation. It is true that many, if not most, aliens do intend to become citizens, and that their loyalty could probably be counted upon. However, it is the process of filing for citizenship that establishes that loyalty; any attempt at prior screening would undercut the efficiency and significance of existing procedures. Therefore, although the presumption that all aliens owe no allegiance to the United States is not valid in every case, no alternative to taking citizenship for testing allegiance can be devised, so that we conclude that the classification is compelled by circumstances, and that it is justifiable.

11

370 F.Supp. at 138.

12

While we are satisfied that the Government has a compelling state interest sufficient to uphold the statute as constitutional, there is another reason why aliens may be excluded from federal juries. Under Article I, section 8, clause 4 of the Constitution, Congress is granted the power "to establish an uniform Rule of Naturalization." This specific grant of authority vests in Congress the plenary, unqualified power to determine which aliens shall be admitted to this country, the period they may remain, and the terms and conditions of their naturalization. Graham v. Richardson, supra, 403 U.S. at 377, 91 S.Ct. at 1854; Takahashi v. Fish and Game Comm'n, supra, 334 U.S. at 419, 68 S.Ct. at 1142; Hines v. Davidowitz, 312 U.S. 52, 66, 61 S.Ct. 399, 403, 85 L.Ed. 581 (1941); see also Harisiades v. Shaughnessy,353 U.S. 72, 77 S.Ct. 618, 1 L.Ed.2d 652 (1957); United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 70 S.Ct. 309, 94 L.Ed. 317 (1950).

13

The plenary authority to admit or exclude aliens necessarily permits Congress to place certain conditions on an alien's right of entry or continued residence. Silverman v. Rogers, 1 Cir., 1970, 437 F.2d 102, 107, cert. denied, 402 U.S. 983, 91 S.Ct. 1667, 29 L.Ed.2d 149; see Perdido v. I.N.S., 5 Cir., 1969, 420 F.2d 1179, 1181. While resident aliens are entitled to the full protection of this country's laws, until they obtain and maintain citizenship by naturalization they are subject to the plenary authority of Congress' immigration and naturalization powers. Carlson v. Landon, 342 U.S. 524, 534, 72 S.Ct. 525, 531, 96 L.Ed. 547 (1952). Thus, while most state classifications based on alienage are inherently suspect, Graham v. Richardson, In re Griffiths, Sugarman v. Dougall, Takahashi v. Fish and Game Comm'n, supra, the same is not true of all such federal classifications where Congress' plenary authority in the field of immigration is involved.

14

Although Congress may not single out aliens for discriminatory treatment in matters not related to the furtherance of its naturalization responsibilities, Ramos v. United States Civil Service Comm'n, D.P.R., 1974,376 F.Supp. 361, 366 (three-judge court), Congress has the

power to define reasonable prerequisites to an alien's exercise of the rights and duties of citizenship. We believe that preventing resident aliens from serving as jurors is rationally related to Congress' legitimate power to define the extent of resident aliens' rights prior to obtaining citizenship. Recently, the Supreme Court stated that a state may deny to aliens the opportunity to participate in the electoral process because of a "State's historical power to exclude aliens from participation in its democratic political institutions" and its "constitutional responsibility for the establishment and operation of its own government," Sugarman v. Dougall, supra, 413 U.S. at 648, 93 S.Ct. at 2850-2851. If a state has the inherent power to deprive aliens of the right to vote, Congress, with its broad powers in dealing with aliens, may validly require citizenship as a prerequisite to service on federal juries. Cf. Ramos v. United States Civil Service Comm'n, supra, 376 F.Supp. at 367 n. 9; Perkins v. Smith, supra, 370 F.Supp. at 139 n. 1 (concurring opinion). Since Congress may validly exclude aliens from jury service, appellant was deprived of no Sixth Amendment right by the failure to have resident aliens included in the grand or petit jury venires.

15

Affirmed.

U.S. Supreme Court

UNITED STATES v. NOBLES, 422 U.S. 225 (1975)

422 U.S. 225

UNITED STATES v. NOBLES. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH

CIRCUIT.

No. 74-634.

Argued April 23, 1975. Decided June 23, 1975.

During respondent's federal criminal trial, which resulted in a conviction, defense counsel sought to impeach the credibility of key prosecution witnesses by testimony of a defense investigator regarding statements previously obtained from the witnesses by the investigator. When the investigator was called as a witness, the District Court stated that a copy of the investigator's report, inspected and edited by the court in camera so as to excise references to matters not relevant to such statements, would have to be submitted to the prosecution for inspection at the completion of the investigator's testimony. When defense counsel said he did not intend to produce the report, the court ruled that the investigator could not testify about his interviews with the witnesses. The Court of Appeals, considering such ruling to be reversible error, held that both the Fifth Amendment and Fed. Rule Crim. Proc. 16 prohibited the disclosure condition imposed.

Held:

1. In a proper case, the prosecution, as well as the defense, can invoke the federal judiciary's inherent power to require production of previously recorded witness statements that facilitate full disclosure of all the relevant facts. Here the investigator's report might provide critical insight into the issues of credibility that the investigator's testimony would raise and hence was highly relevant to such issues. Pp. 230-232.

2. The Fifth Amendment privilege against compulsory self-incrimination, being personal to the defendant, does not extend to the testimony or statements of third parties called as witnesses at trial. In this instance the fact that the statements of third parties were elicited by a defense investigator on respondent's behalf does not convert them into respondent's personal communications, and requiring their production would in no sense compel respondent to be a witness against himself or extort communications from him. Pp. 233-234.

3. Rule 16, whose language and history both indicate that it addresses only pretrial discovery, imposes no constraint on the [422 U.S. 225, 226] District Court's power to condition the impeachment testimony of respondent's witness on the production of the relevant portions of his report. The fact that the Rule incorporates the Jencks Act limitation shows no contrary intent and does not convert the Rule into a general limitation on the trial court's broad discretion as to evidentiary questions at trial. Pp. 234-236.

4. The qualified privilege derived from the attorney work-product doctrine is not available to prevent disclosure of the investigative report, since respondent, by electing to present the investigator as a witness, waived the privilege with respect to matters covered in his testimony. Pp. 236-240.

5. It was within the District Court's discretion to assure that the jury would hear the investigator's full testimony rather than a truncated portion favorable to respondent, and the court's ruling, contrary to respondent's contention, did not deprive him of the Sixth Amendment rights to compulsory process and cross-examination. That Amendment does not confer the right to present testimony free from the legitimate demands of the adversarial system and cannot be invoked as a justification for presenting what might have been a half-truth. Pp. 240-241.

501 F.2d 146, reversed.

POWELL, J., delivered the opinion of the Court, in which BURGER, C. J., and BRENNAN, STEWART, MARSHALL, and BLACKMUN, JJ., joined, and in parts II, III, and V of which WHITE and REHNQUIST, JJ., joined. WHITE, J., filed a concurring opinion, in which REHNQUIST, J., joined, post, p. 242. DOUGLAS, J., took no part in the consideration or decision of the case.

Paul L. Friedman argued the cause for the United States. With him on the briefs were Solicitor General Bork, Acting Assistant Attorney General Keeney, Deputy Solicitor General Frey, Sidney M. Glazer, and Ivan Michael Schaeffer.

Nicholas R. Allis argued the cause for respondent. With him on the brief was John K. Van de Kamp. *

[ Footnote * ] Briefs of amici curiae urging affirmance were filed by John J. Cleary for the California Public Defenders Assn. et al., and by the Federal Public Defender of New Jersey. [422 U.S. 225, 227]

MR. JUSTICE POWELL delivered the opinion of the Court.

In a criminal trial, defense counsel sought to impeach the credibility of key prosecution witnesses by testimony of a defense investigator regarding statements previously obtained from the witnesses by the investigator. The question presented here is whether in these circumstances a federal trial court may compel the defense to reveal the relevant portions of the investigator's report for the prosecution's use in cross-examining him. The United States Court of Appeals for the Ninth Circuit concluded that it cannot. 501 F.2d 146. We granted certiorari, 419 U.S. 1120 (1975), and now reverse.

I

Respondent was tried and convicted on charges arising from an armed robbery of a federally insured bank. The only significant evidence linking him to the crime was the identification

testimony of two witnesses, a bank teller and a salesman who was in the bank during the robbery. 1 Respondent offered an alibi but, as the Court of Appeals recognized, 501 F.2d, at 150, his strongest defense centered around attempts to discredit these eyewitnesses. Defense efforts to impeach them gave rise to the events that led to this decision.

In the course of preparing respondent's defense, an investigator for the defense interviewed both witnesses and preserved the essence of those conversations in a written report. When the witnesses testified for the prosecution, respondent's counsel relied on the report in conducting their cross-examination. Counsel asked the bank [422 U.S. 225, 228] teller whether he recalled having told the investigator that he had seen only the back of the man he identified as respondent. The witness replied that he did not remember making such a statement. He was allowed, despite defense counsel's initial objection, to refresh his recollection by referring to a portion of the investigator's report. The prosecutor also was allowed to see briefly the relevant portion of the report. 2 The witness thereafter testified that although the report indicated that he told the investigator he had seen only respondent's back, he in fact had seen more than that and continued to insist that respondent was the bank robber.

The other witness acknowledged on cross-examination that he too had spoken to the defense investigator. Respondent's counsel twice inquired whether he told the investigator that "all blacks looked alike" to him, and in each instance the witness denied having made such a statement. The prosecution again sought inspection of the relevant portion of the investigator's report, and respondent's counsel again objected. The court declined to order disclosure at that time, but ruled that it would be required if the investigator testified as to the witnesses' alleged statements from the witness stand. 3 The [422 U.S. 225, 229] court further advised that it would examine the investigator's report in camera and would excise all reference to matters not relevant to the precise statements at issue.

After the prosecution completed its case, respondent called the investigator as a defense witness. The court reiterated that a copy of the report, inspected and edited in camera, would have to be submitted to Government counsel at the completion of the investigator's impeachment testimony. When respondent's counsel stated that he did not intend to produce the report, the court ruled that the investigator would not be allowed to testify about his interviews with the witnesses. 4

The Court of Appeals for the Ninth Circuit, while acknowledging that the trial court's ruling constituted a "very limited and seemingly judicious restriction," 501 F.2d, at 151, nevertheless considered it reversible [422 U.S. 225, 230] error. Citing United States v. Wright, 160 U.S. App. D.C. 57, 68, 489 F.2d 1181, 1192 (1973), the court found that the Fifth Amendment prohibited the disclosure condition imposed in this case. The court further held that Fed. Rule Crim. Proc. 16, while framed exclusively in terms of pretrial discovery, precluded prosecutorial discovery at trial as well. 501 F.2d, at 157; accord, United States v. Wright, supra, at 66-67, 489 F.2d, at 1190-1191. In each respect, we think the court erred.

II

The dual aim of our criminal justice system is "that guilt shall not escape or innocence suffer," Berger v. United States, 295 U.S. 78, 88 (1935). To this end, we have placed our confidence in the adversary system, entrusting to it the primary responsibility for developing relevant facts on which a determination of guilt or innocence can be made. See United States v. Nixon, 418 U.S. 683, 709 (1974); Williams v. Florida, 399 U.S. 78, 82 (1970); Elkins v. United States, 364 U.S. 206, 234 (1960) (Frankfurter, J., dissenting).

While the adversary system depends primarily on the parties for the presentation and exploration of relevant facts, the judiciary is not limited to the role of a referee or supervisor. Its compulsory processes stand available to require the presentation of evidence in court or before a grand jury. United States v. Nixon, supra; Kastigar v. United States, 406 U.S. 441, 443 -444 (1972); Murphy v. Waterfront Comm'n, 378 U.S. 52, 93 -94 (1964) (WHITE, J., concurring). As we recently observed in United States v. Nixon, supra, at 709:

"We have elected to employ an adversary system of criminal justice in which the parties contest all issues before a court of law. The need to develop all relevant facts in the adversary system is both [422 U.S. 225, 231] fundamental and comprehensive. The ends of criminal justice would be defeated if judgments were to be founded on a partial or speculative presentation of the facts. The very integrity of the judicial system and public confidence in the system depend on full disclosure of all the facts, within the framework of the rules of evidence. To ensure that justice is done, it is imperative to the function of courts that compulsory process be available for the production of evidence needed either by the prosecution or by the defense."

Decisions of this Court repeatedly have recognized the federal judiciary's inherent power to require the prosecution to produce the previously recorded statements of its witnesses so that the defense may get the full benefit of cross-examination and the truth-finding process may be enhanced. See, e. g., Jencks v. United States,353 U.S. 657 (1957); 5 Gordon v. United States, 344 U.S. 414 (1953); Goldman v. United States, 316 U.S. 129(1942); Palermo v. United States, 360 U.S. 343, 361 (1959) (BRENNAN, J., concurring in result). At issue here is whether, in a proper case, the prosecution can call upon that same power for production of witness statements that facilitate "full disclosure of all the [relevant] facts." United States v. Nixon, supra, at 709.

In this case, the defense proposed to call its investigator to impeach the identification testimony of the prosecution's eyewitnesses. It was evident from cross-examination that the investigator would testify that each witness' recollection of the appearance of the individual identified as respondent was considerably less clear at[422 U.S. 225, 232] an earlier time than it was at trial. It also appeared that the investigator and one witness differed even as to what the witness told him during the interview. The investigator's contemporaneous report might provide critical insight into the issues of credibility that the investigator's testimony would raise. It could assist the jury in determining the extent to which the investigator's testimony actually discredited the prosecution's witnesses. If, for example, the report failed to mention the purported statement of one witness that "all blacks looked alike," the jury might disregard the investigator's version altogether. On the other hand, if this statement appeared in the contemporaneously recorded report, it would tend strongly to corroborate the investigator's version of the interview and to diminish substantially the reliability of that witness' identification. 6

It was therefore apparent to the trial judge that the investigator's report was highly relevant to the critical issue of credibility. In this context, production of the report might substantially enhance "the search for truth," Williams v. Florida, 399 U.S., at 82 . We must determine whether compelling its production was precluded by some privilege available to the defense in the circumstances of this case. [422 U.S. 225, 233]

III

A

The Court of Appeals concluded that the Fifth Amendment renders criminal discovery "basically a oneway street." 501 F.2d, at 154. Like many generalizations in constitutional law, this one is too broad. The relationship between the accused's Fifth Amendment rights and the prosecution's ability to discover materials at trial must be identified in a more discriminating manner.

The Fifth Amendment privilege against compulsory self-incrimination is an "intimate and personal one," which protects "a private inner sanctum of individual feeling and thought and proscribes state intrusion to extract self-condemnation." Couch v. United States, 409 U.S. 322, 327 (1973); see also Bellis v. United States,417 U.S. 85, 90 -91 (1974); United States v. White, 322 U.S. 694, 698 (1944). As we noted in Couch, supra, at 328, the "privilege is a personal privilege: it adheres basically to the person, not to information that may incriminate him." 7

In this instance disclosure of the relevant portions of the defense investigator's report would not impinge on the fundamental values protected by the Fifth Amendment. The court's order was limited to statements [422 U.S. 225, 234] allegedly made by third parties who were available as witnesses to both the prosecution and the defense. Respondent did not prepare the report, and there is no suggestion that the portions subject to the disclosure order reflected any information that he conveyed to the investigator. The fact that these statements of third parties were elicited by a defense investigator on respondent's behalf does not convert them into respondent's personal communications. Requiring their production from the investigator therefore would not in any sense compel respondent to be a witness against himself or extort communications from him.

We thus conclude that the Fifth Amendment privilege against compulsory self-incrimination, being personal to the defendant, does not extend to the testimony or statements of third parties called as witnesses at trial. The Court of Appeals' reliance on this constitutional guarantee as a bar to the disclosure here ordered was misplaced.

B

The Court of Appeals also held that Fed. Rule Crim. Proc. 16 deprived the trial court of the power to order disclosure of the relevant portions of the investigator's report. 8 Acknowledging that the Rule appears to control pretrial discovery only, the court nonetheless determined [422 U.S. 225, 235] that its reference to the Jencks Act, 18 U.S.C. 3500, signaled an intention that Rule 16 should control trial practice as well. We do not agree.

Both the language and history of Rule 16 indicate that it addresses only pretrial discovery. Rule 16 (f) requires that a motion for discovery be filed "within 10 days after arraignment or . . . such reasonable later time as the court may permit," and further commands that it include all relief sought by the movant. When this provision is viewed in light of the Advisory Committee's admonition that it is designed to encourage promptness in filing and to enable the district court to avoid unnecessary delay or multiplication of motions, see Advisory Committee's Notes on Rule 16, 18 U.S.C. App., p. 4494, the pretrial focus of the Rule becomes apparent. The Government's right of discovery arises only after the defendant has successfully sought discovery under subsections (a) (2) or (b) and is confined to matters "which the defendant intends to produce at the trial." Fed. Rule Crim. Proc. 16 (c). This hardly suggests any intention that the Rule would limit the court's power to order production once trial has begun. 9 Finally, the Advisory Committee's Notes emphasize its pretrial character. Those notes repeatedly characterize the Rule as a provision governing pretrial disclosure, never once suggesting that it was intended to constrict a district court's [422 U.S. 225, 236] control over evidentiary questions arising at trial. 18 U.S.C. App., pp. 4493-4495.

The incorporation of the Jencks Act limitation on the pretrial right of discovery provided by Rule 16 does not express a contrary intent. It only restricts the defendant's right of pretrial discovery in a manner that reconciles that provision with the Jencks Act limitation on the trial court's discretion over evidentiary matters. It certainly does not convert Rule 16 into a general limitation on the trial court's broad discretion as to evidentiary questions at trial. Cf. Giles v. Maryland, 386 U.S. 66, 101 (1967) (Fortas, J., concurring in judgment). 10 We conclude, therefore, that Rule 16 imposes no constraint on the District Court's power to condition the impeachment testimony of respondent's witness on the production of the relevant portions of his investigative report. In extending the Rule into the trial context, the Court of Appeals erred.

IV

Respondent contends further that the work-product doctrine exempts the investigator's report from disclosure at trial. While we agree that this doctrine applies to criminal litigation as well as civil, we find its protection unavailable in this case.

The work-product doctrine, recognized by this Court in Hickman v. Taylor, 329 U.S. 495 (1947), reflects the strong "public policy underlying the orderly prosecution [422 U.S. 225, 237] and defense of legal claims." Id., at 510; see also id., at 514-515 (Jackson, J., concurring). As the Court there observed:

"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. Proper preparation of a client's case demands that he assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference. That is the historical and the necessary way in which lawyers act within the framework of our system of jurisprudence to promote justice and to protect their clients' interests. This work is reflected, of course, in interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and countless other tangible and intangible ways - aptly though roughly termed by the Circuit Court of Appeals in this case

as the `work product of the lawyer.' Were such materials open to opposing counsel on mere demand, much of what is now put down in writing would remain unwritten. An attorney's thoughts, heretofore inviolate, would not be his own. Inefficiency, unfairness and sharp practices would inevitably develop in the giving of legal advice and in the preparation of cases for trial. The effect on the legal profession would be demoralizing. And the interests of the clients and the cause of justice would be poorly served." Id., at 510-511.

The Court therefore recognized a qualified privilege for [422 U.S. 225, 238] certain materials prepared by an attorney "acting for his client in anticipation of litigation." Id., at 508. 11 See generally 4 J. Moore, Federal Practice 26.63 (2d ed. 1974); E. Cleary, McCormick on Evidence 204-209 (2d ed. 1972); Note, Developments in the Law - Discovery, 74 Harv. L. Rev. 940, 1027-1046 (1961).

Although the work-product doctrine most frequently is asserted as a bar to discovery in civil litigation, its role in assuring the proper functioning of the criminal justice system is even more vital. The interests of society and the accused in obtaining a fair and accurate resolution of the question of guilt or innocence demand that adequate safeguards assure the thorough preparation and presentation of each side of the case. 12

At its core, the work-product doctrine shelters the mental processes of the attorney, providing a privileged area within which he can analyze and prepare his client's case. But the doctrine is an intensely practical one, grounded in the realities of litigation in our adversary system. 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 [422 U.S. 225, 239] well as those prepared by the attorney himself. 13 Moreover, the concerns reflected in the work-product doctrine do not disappear once trial has begun. Disclosure of an attorney's 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.

The privilege derived from the work-product doctrine is not absolute. Like other qualified privileges, it may be waived. Here respondent sought to adduce the testimony of the investigator and contrast his recollection of the contested statements with that of the prosecution's witnesses. Respondent, by electing to present the investigator as a witness, waived the privilege with respect to matters covered in his testimony. 14 Respondent[422 U.S. 225, 240] can no more advance the work-product doctrine to sustain a unilateral testimonial use of work-product materials than he could elect to testify in his own behalf and thereafter assert his Fifth Amendment privilege to resist cross-examination on matters reasonably related to those brought out in direct examination. See, e. g., McGautha v. California, 402 U.S. 183, 215 (1971). 15

V

Finally, our examination of the record persuades us that the District Court properly exercised its discretion in this instance. The court authorized no general "fishing expedition" into the defense files or indeed even into the defense investigator's report. Cf. United States v. Wright, 160 U.S. App. D.C. 57, 489 F.2d 1181 (1973). Rather, its considered ruling was quite limited

in scope, opening to prosecution scrutiny only the portion of the report that related to the testimony the investigator would offer to discredit the witnesses' identification testimony. The court further afforded respondent the maximum [422 U.S. 225, 241] opportunity to assist in avoiding unwarranted disclosure or to exercise an informed choice to call for the investigator's testimony and thereby open his report to examination.

The court's preclusion sanction was an entirely proper method of assuring compliance with its order. Respondent's argument that this ruling deprived him of the Sixth Amendment rights to compulsory process and cross-examination misconceives the issue. The District Court did not bar the investigator's testimony. Cf. Washington v. Texas, 388 U.S. 14, 19 (1967). It merely prevented respondent from presenting to the jury a partial view of the credibility issue by adducing the investigator's testimony and thereafter refusing to disclose the contemporaneous report that might offer further critical insights. The Sixth Amendment does not confer the right to present testimony free from the legitimate demands of the adversarial system; one cannot invoke the Sixth Amendment as a justification for presenting what might have been a half-truth. Deciding, as we do, that it was within the court's discretion to assure that the jury would hear the full testimony of the investigator rather than a truncated portion favorable to respondent, we think it would be artificial indeed to deprive the court of the power to effectuate that judgment. Nor do we find constitutional significance in the fact that the court in this instance was able to exclude the testimony in advance rather than receive it in evidence and thereafter charge the jury to disregard it when respondent's counsel refused, as he said he would, to produce the report. 16 [422 U.S. 225, 242]

The judgment of the Court of Appeals for the Ninth Circuit is therefore

Reversed.