Media for Decker v. Harper & Row Publishers, Inc.
Audio Transcription for Oral Argument - December 16, 1970 in Decker v. Harper & Row Publishers, Inc.
Lee A. Freeman, Jr.:
If the employee is asked to submit a report, he will submit a report.
The fear that corporations will stop employing attorneys or the attorneys will not properly prepare their cases for corporate client is also a relatively remote.
This rule has been in effect to control group rule in the Eastern District of Pennsylvania for eight years.
It has been applied throughout the electrical conspiracy cases by Judge Kirkpatrick, Judge Ryan, and Judge Christiansen.
It was applied by Judge Fullam in the Philadelphia Electric versus Anaconda Brass case.
In that case, Judge Fullam held there was no privilege but refused to disclose the debriefing statements because he found there was no good cause for their discovery.
Indeed, all of the arguments which have been raised by the defendants in support of the privilege are really arguments which go to good cause and they were arguments which were answered by Hickman v. Taylor.
The idea that an attorney will be a witness against his client, the idea that an attorney will be a source of information for his adversary, the idea that discovery of work product will reward the slothful attorney and penalizing industrious attorney.
It hasn't happened.
It hasn't occurred.
Courts require quite a substantial showing of need before they open opposing counsel's files to their adversaries.
And I think that is sufficient protection to all of the fears which the defendants imagine.
It really boils down to a balancing of interests.
We submit that contrary to respondents -- defendants' representation the material is not otherwise available to the plaintiffs.
We must look at the contents of these debriefing statements to determining what kind of material is being suppressed and what justification there is for applying the privilege to all employees when there are such strong reasons for securing this information to make a proper resolution of judicial controversies.
Warren E. Burger:
Thank you Mr. Freeman.
Thank you Mr. Brown.
The case is submitted.