U.S. Supreme Court Upjohn Co. v. United States, 449
U.S. 383 (1981) Upjohn Co. v. United
States No. 79-886 Argued November 5,
1980 Decided January 13,
1981 449
U.S. 383 CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE SIXTH
CIRCUIT Syllabus 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. § 762 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 Page 449 U. S. 384 questionnaires and any notes reflecting responses to interview
questions are concerned. Pp. 449 U. S.
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. 449 U. S.
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. 449 U. S.
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. 449 U. S.
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. 449 U. S.
394 -395

															2. The work product doctrine applies to IRS summonses. Pp. 449 U. S.
397 -402.

															(a) The obligation imposed by a tax summons remains subject to
the traditional privileges and limitations, and nothing in the
language Page 449 U. S. 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. 449 U. S.
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 6, 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. 449 U. S. 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. 449 U. S.
402 . Page 449 U. S. 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 Page 449 U. S. 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. [ Footnote 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 Page 449 U. S. 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 Page 449 U. S. 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 , 445 U. S. 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 , 425 U. S. 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 , 128 U. S. 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 Page 449 U. S. 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 , 236 U. S. 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 445 U. S. 51 ; Fisher, supra at 425 U. S. 403 .
The first step in the resolution of any legal problem is
ascertaining the factual background and sifting through the
facts Page 449 U. S. 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 , 329 U. S. 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,' Page 449 U. S. 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 , 438 U. S.
440 -441 (1978) ("the behavior proscribed by the
[Sherman] Act is Page 449 U. S. 393 often difficult to distinguish from the gray zone of socially
acceptable and economically justifiable business conduct").
[ Footnote 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). Page 449 U. S. 394 The communications at issue were made by Upjohn employees
[ Footnote 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 leal 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. [ Footnote 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." Page 449 U. S. 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. [ Footnote 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 Page 449 U. S. 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 communication 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 329 U. S. 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 445 U. S. 47 ; United States v. Gillock, 445 U.
S. 360 , 445 U. S. 367 (1980). While such a "case-by-case" basis may to some slight extent
undermine desirable certainty in the boundaries of the
attorney-client Page 449 U. S. 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. [ Footnote 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 329 U. S. 510 .
The Court noted that "it is essential that a lawyer work with Page 449 U. S. 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 329 U. S. 511 .
The "strong public policy" underlying the work product doctrine was
reaffirmed recently in United States v. Nobles, 422 U. S. 225 , 422 U. S.
236 -240 (1975), and has been substantially incorporated
in Federal Rule of Civil Procedure 26(b)(3). [ Footnote 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 , 444 U. S. 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 Page 449 U. S. 399 to summons enforcement proceedings by Rule 81(a)(3). See
Donaldson v. United States, 400 U. S. 517 , 400 U. S. 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 329 U. S. 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 329 U. S. 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 329 U. S.
512 -513. See also Nobles, supra at 422 U. S.
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 329 U. S. 513 ("what he saw fit to write down regarding witnesses' remarks"); id. at 329 U. S.
516 -517 ("the statement would be his [the Page 449 U. S. 400 attorney's] language, permeated with his inferences") (Jackson,
J., concurring). [ Footnote
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. . .
."). Page 449 U. S. 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 Page 449 U. S. 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. [ Footnote 1 ]

															On July 28, 1976, the company filed an amendment to this report
disclosing further payments.

															[ Footnote 2 ]

															The Government argues that the risk of civil or criminal
liability suffices to ensure that corporations will seek legal
advice in the absence of the protection of the privilege. This
response ignores the fact that the depth and quality of any
investigations to ensure compliance with the law would suffer, even
were they undertaken. The response also proves too much, since it
applies to all communications covered by the privilege: an
individual trying to comply with the law or faced with a legal
problem also has strong incentive to disclose information to his
lawyer, yet the common law has recognized the value of the
privilege in further facilitating communications.

															[ Footnote 3 ]

															Seven of the eighty-six employees interviewed by counsel had
terminated their employment with Upjohn at the time of the
interview. App. 33a-38a. Petitioners argue that the privilege
should nonetheless apply to communications by these former
employees concerning activities during their period of employment.
Neither the District Court nor the Court of Appeals had occasion to
address this issue, and we decline to decide it without the benefit
of treatment below.

															[ Footnote 4 ] See id. at 26a-27a, 103a, 123a-124a. See also In re
Grand Jury Investigation, 599 F.2d 1224, 1229 (CA3 1979); In re Grand Jury Subpoena, 599 F.2d 504, 511 (CA2
1979).

															[ Footnote 5 ] See Magistrate's opinion, 71 USTC � 9277, p.
83,599:

															"The responses to the questionnaires and the notes of the
interviews have been treated as confidential material, and have not
been disclosed to anyone except Mr. Thomas and outside
counsel."

															[ Footnote 6 ]

															The following discussion will also be relevant to counsel's
notes and memoranda of interviews with the seven former employees
should it be determined that the attorney-client privilege does not
apply to them. See n 3, supra. [ Footnote 7 ]

															This provides, in pertinent part:

															"[A] party may obtain discovery of documents and tangible things
otherwise discoverable under subdivision (b)(1) of this rule and
prepared in anticipation of litigation or for trial by or for
another party or by or for that other party's representative
(including his attorney, consultant, surety, indemnitor, insurer,
or agent) only upon a showing that the party seeking discovery has
substantial need of the materials in the preparation of his case
and that he is unable without undue hardship to obtain the
substantial equivalent of the materials by other means. In 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."

															[ Footnote 8 ]

															Thomas described his notes of the interviews as containing

															"what I considered to be the important questions, the substance
of the responses to them, my beliefs as to the importance of these,
my beliefs as to how they related to the inquiry, my thoughts as to
how they related to other questions. In some instances, they might
even suggest other questions that I would have to ask or things
that I needed to find elsewhere."

															78-1 USTC � 9277, p. 83,599.

															CHIEF JUSTICE BURGER, concurring in part and concurring in the
judgment.

															I join in Parts I and III of the opinion of the Court and in the
judgment. As to Part II, I agree fully with the Court's rejection
of the so-called "control group" test, its reasons for doing so,
and its ultimate holding that the communications at issue are
privileged. As the Court states, however,

															"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." Ante at 449 U. S. 393 . For
this very reason, I believe that we should articulate a standard
that will govern similar cases and afford guidance to corporations,
counsel advising them, and federal courts.

															The Court properly relies on a variety of factors in concluding
that the communications now before us are privileged. See
ante at 449 U. S.
394 -395. Because of the great importance of the issue,
in my view, the Court should make clear now that, as a Page 449 U. S. 403 general rule, a communication is privileged at least when, as
here, an employee or former employee speaks at the direction of the
management with an attorney regarding conduct or proposed conduct
within the scope of employment. The attorney must be one authorized
by the management to inquire into the subject, and must be seeking
information to assist counsel in performing any of the following
functions: (a) evaluating whether the employee's conduct has bound
or would bind the corporation; (b) assessing the legal
consequences, if any, of that conduct; or (c) formulating
appropriate legal responses to actions that have been or may be
taken by others with regard to that conduct. See, e.g.,
Diversified Industries, Inc. v. Meredith, 572 F.2d 596, 609
(CA8 1978) (en banc); Harper & Row Publishers, Inc. v.
Decker, 423 F.2d 487, 491-492 (CA7 1970), aff'd by an
equally divided Court, 400 U. S. 348 (1971); Duplan Corp. v. Deering Milliken,
Inc., 397 F.
Supp. 1146 , 1163-1165 (SC 1974). Other communications between
employees and corporate counsel may indeed be privileged -- as the
petitioners and several amici have suggested in their
proposed formulations * -- but the need
for certainty does not compel us now to prescribe all the details
of the privilege in this case.

															Nevertheless, to say we should not reach all facets of the
privilege does not mean that we should neglect our duty to provide
guidance in a case that squarely presents the question in a
traditional adversary context. Indeed, because Federal Rule of
Evidence 501 provides that the law of privileges

															"shall be governed by the principles of the common law as they
may be interpreted by the courts of the United States in the light
of reason and experience,"

															this Court has a special duty to clarify aspects of the law of
privileges properly Page 449 U. S. 404 before us. Simply asserting that this failure "may to some
slight extent undermine desirable certainty," ante at 449 U. S. 396 ,
neither minimizes the consequences of continuing uncertainty and
confusion nor harmonizes the inherent dissonance of acknowledging
that uncertainty while declining to clarify it within the frame of
issues presented.

															* See Brief for Petitioners 21-23, and n. 25; Brief for
American Bar Association as Amicus Curiae 5-6, and n. 2;
Brief for American College of Trial Lawyers and 33 Law Firms as Amici Curiae 10, and n. 5.


Insurance Corp. of Ireland v. Compagnie des Bauxites

U.S. Supreme Court Ins. Co. of Ireland v. Compagnie Des
Bauxites, 456
U.S. 694 (1982) Insurance Corporation of Ireland,
Ltd. v. Compagnie des Bauxites de
Guinee No. 81-440 Argued March 23, 1982 Decided June 1, 1982 456
U.S. 694 CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE THIRD CIRCUIT Syllabus Federal Rule of Civil Procedure 37(b)(2)(A) provides that a
district court, as a sanction for failure to comply with discovery
orders, may enter

															"[a]n order that the matters regarding which the [discovery]
order was made or any other designated facts shall be taken to be
established for the purposes of the action in accordance with the
claim of the party obtaining the order."

															Asserting diversity jurisdiction, respondent, a Delaware
corporation with its principal place of business in the Republic of
Guinea, filed suit against various insurance companies in the
United States District Court for the Western District of
Pennsylvania to recover on a business interruption policy. When
certain of the defendants (a group of foreign insurance companies,
including petitioners) raised the defense of lack of personal
jurisdiction, respondent attempted to use discovery in order to
establish jurisdictional facts. After petitioners repeatedly failed
to comply with the court's orders for production of the requested
information, the court warned them that, unless they complied by a
specified date, it would assume, pursuant to Rule 37(b)(2)(A), that
it had personal jurisdiction. When petitioners again failed to
comply, the court imposed the sanction, and the Court of Appeals
affirmed, concluding that imposition of the sanction fell within
the trial court's discretion under Rule 37(b)(2)(A) and that the
sanction did not violate petitioners' due process rights. Held: 1. Rule 37(b)(2)(A) may be applied to support a finding of
personal jurisdiction without violating due process. Unlike subject
matter jurisdiction, which is an Art. III as well as a statutory
requirement, the requirement that a court have personal
jurisdiction flows from the Due Process Clause and protects an
individual liberty interest. Because it protects an individual
interest, it may be intentionally waived, or, for various reasons,
a defendant may be estopped from raising the issue. Due process is
violated by a rule establishing legal consequences of a failure to
produce evidence only if the defendant's behavior will not support
the presumption that

															"the refusal to produce evidence material to the administration
of due process was but an admission of the want of merit in Page 456 U. S. 695 the asserted defense." Hammond Packing Co. v. Arkansas, 212 U.
S. 322 , 212 U. S. 351 .
A proper application of Rule 37(b)(2)(A) will, as a matter of law,
support such a presumption. Pp. 456 U. S.
701 -707.

															2. The District Court did not abuse its discretion in applying
Rule 37(b)(2)(A) in this case. The record establishes that
imposition of the sanction here satisfied the Rule's requirements
that the sanction be both "just" and specifically related to the
particular "claim" that was at issue in the discovery order. Pp. 456 U.S. 707 -709.

															651 F.2d 877, affirmed.

															WHITE, J., delivered the opinion of the Court, in which BURGER,
C.J., and BRENNAN, MARSHALL, BLACKMUN, REHNQUIST, STEVENS, and
O'CONNOR, JJ., joined. POWELL, J., filed an opinion concurring in
the judgment, post, p. 456 U. S.
709 .

															JUSTICE WHITE delivered the opinion of the Court.

															Rule 37(b), Federal Rules of Civil Procedure, provides that a
district court may impose sanctions for failure to comply with
discovery orders. Included among the available sanctions is:

															"An order that the matters regarding which the order was made or
any other designated facts shall be taken to be established for the
purposes of the action in accordance with the claim of the party
obtaining the order."

															Rule 37(b)(2)(A). The question presented by this case is whether
this Rule is applicable to facts that form the basis for personal
jurisdiction over a defendant. May a district court, as a sanction
for failure to comply with a discovery order directed at
establishing jurisdictional facts, proceed on the basis that
personal jurisdiction over the recalcitrant party has been
established? Page 456 U. S. 696 Petitioners urge that such an application of the Rule would
violate due process: if a court does not have jurisdiction over a
party, then it may not create that jurisdiction by judicial fiat.
[ Footnote 1 ] They contend also
that, until a court has jurisdiction over a party, that party need
not comply with orders of the court; failure to comply, therefore,
cannot provide the ground for a sanction. In our view, petitioners
are attempting to create a logical conundrum out of a fairly
straightforward matter. I Respondent Compagnie des Bauxites de Guinee (CBG) is a Delaware
corporation, 49% of which is owned by the Republic of Guinea and
51% is owned by Halco (Mining) Inc. CBG's principal place of
business is in the Republic of Guinea, where it operates bauxite
mines and processing facilities. Halco, which operates in
Pennsylvania, has contracted to perform certain administrative
services for CBG. These include the procurement of insurance.

															In 1973, Halco instructed an insurance broker, Marsh &
McLennan, to obtain $20 million worth of business interruption
insurance to cover CBG's operations in Guinea. The first half of
this coverage was provided by the Insurance Company of North
America (INA). The second half, or what is referred to as the
"excess" insurance, was provided by a group of 21 foreign insurance
companies, [ Footnote 2 ] 14 of
which are petitioners in this action (the excess insurers).
[ Footnote 3 ] Page 456 U. S. 697 Marsh & McLennan requested Bland Payne to obtain the excess
insurance in the London insurance market. Pursuant to normal
business practice,

															"[i]n late January and in February, 1974, Bland Payne presented
to the excess insurer [petitioners] a placing slip in the amount of
$10,000,000, in excess of the first $10,000,000. [Petitioners]
initialed said placing slip, effective February 12, 1974,
indicating the part of said $10,000,000 each was willing to insure.
[ Footnote 4 ]"

															Finding 27 of the District Court, 2 App. 347a. Once the offering
was fully subscribed, Bland Payne issued a cover note indicating
the amount of the coverage and specifying the percentage of the
coverage that each excess insurer had agreed to insure. No separate
policy was issued; the excess insurers adopted the INA policy "as
far as applicable."

															Sometime after February 12, CBG allegedly experienced mechanical
problems in its Guinea operation, resulting in a business
interruption loss in excess of $10 million. Contending that the
loss was covered under its policies, CBG brought suit when the
insurers refused to indemnify CBG for the loss. Whatever the
mechanical problems experienced by CBG, they were perhaps minor
compared to the legal difficulties encountered in the courts. Page 456 U. S. 698 In December, 1975, CBG filed a two-count suit in the Western
District of Pennsylvania, asserting jurisdiction based on diversity
of citizenship. The first count was against INA; the second against
the excess insurers. INA did not challenge personal or subject
matter jurisdiction of the District Court. The answer of the excess
insurers, however, raised a number of defenses, including lack of in personam jurisdiction. Subsequently, this alleged lack
of personal jurisdiction became the basis of a motion for summary
judgment filed by the excess insurers. [ Footnote 5 ] The issue in this case requires an account of
respondent's attempt to use discovery in order to demonstrate the
court's personal jurisdiction over the excess insurers.

															Respondent's first discovery request -- asking for "[c]opies of
all business interruption insurance policies issued by Defendant
during the period from January 1, 1972, to December 31, 1975" --
was served on each defendant in August, 1976. In January, 1977, the
excess insurers objected, on grounds of burdensomeness, to
producing such policies. Several months later, respondent filed a
motion to compel petitioners to produce the requested documents. In
June, 1978, the court orally overruled petitioners' objections.
This was followed by a second discovery request in which respondent
narrowed the files it was seeking to policies which "were delivered
in . . . Pennsylvania . . . or covered a risk located in . . .
Pennsylvania." Petitioners now objected that these documents were
not in their custody or control; rather, they were kept by the
brokers in London. The court ordered petitioners to request the
information from the brokers, limiting the request to policies
covering the period from 1971 to date. That was in July, 1978;
petitioners were given 90 days to produce the information. On
November 8, petitioners Page 456 U. S. 699 were given an additional 30 days to complete discovery. On
November 24, petitioners filed an affidavit offering to make their
records, allegedly some 4 million files, available at their offices
in London for inspection by respondent. Respondent countered with a
motion to compel production of the previously requested documents.
On December 21, 1978, the court, noting that no conscientious
effort had yet been made to produce the requested information and
that no objection had been entered to the discovery order in July,
gave petitioners 60 more days to produce the requested information.
The District Judge also issued the following warning:

															[I]f you don't get it to him in 60 days, I am going to enter an
order saying that, because you failed to give the information as
requested, that I am going to assume, under Rule of Civil Procedure
37(b), subsection 2(A), that there is jurisdiction.

															1 App. 115a. A few moments later, he restated the warning as
follows:

															"I will assume that jurisdiction is here with this court unless
you produce statistics and other information in that regard that
would indicate otherwise" Id. at 116a.

															On April 19, 1979, the court, after concluding that the
requested material had not been produced, imposed the threatened
sanction, finding that,

															"for the purpose of this litigation, the Excess Insurers are
subject to the in personam jurisdiction of this Court due
to their business contacts with Pennsylvania." Id. at 201a. Independently of the sanction, the
District Court found two other grounds for holding that it had
personal jurisdiction over petitioners. First, on the record
established, it found that petitioners had sufficient business
contacts with Pennsylvania to fall within the Pennsylvania long-arm
statute. Second, in adopting the terms of the INA contract with CBG
-- a Pennsylvania insurance contract -- the excess insurers
implicitly agreed to submit to the jurisdiction of the court.
[ Footnote 6 ] Page 456 U. S. 700 Except with respect to three excess insurers, the Court of
Appeals for the Third Circuit affirmed the jurisdictional holding,
relying entirely upon the validity of the sanction. [ Footnote 7 ] Compagnie des Bauxites de
Guinea v. Insurance Co. of North America, 651 F.2d 877 (1981).
That court specifically found that the discovery orders of the
District Court did not constitute an abuse of discretion, and that
imposition of the sanction fell within the limits of trial court
discretion under Rule 37(b):

															"The purpose and scope of the ordered discovery were directly
related to the issue of jurisdiction, and the rule 37 sanction was
tailored to establish as admitted those jurisdictional facts that,
because of the insurers' failure to comply with discovery orders,
CBG was unable to adduce through discovery."

															651 F.2d at 885. Furthermore, it held that the sanction did not
violate petitioners' due process rights, because it was no broader
than "reasonably necessary" under the circumstances.

															Because the decision below directly conflicts with the decision
of the Court of Appeals for the Fifth Circuit in Familia de
Boom v. Arosa Mercantil, S.A., 629 F.2d 1134 (1980), we
granted certiorari. 454 U.S. 963 (1981). [ Footnote 8 ] Page 456 U. S. 701 II In McDonald v. Mabee, 243 U. S. 90 (1917), another case involving an alleged lack of personal
jurisdiction, Justice Holmes wrote for the Court, "great caution
should be used not to let fiction deny the fair play that can be
secured only by a pretty close adhesion to fact." Id. at 243 U. S. 91 .
Petitioners' basic submission is that to apply Rule 37(b)(2) to
jurisdictional facts is to allow fiction to get the better of fact,
and that it is impermissible to use a fiction to establish judicial
power where, as a matter of fact, it does not exist. In our view,
this represents a fundamental misunderstanding of the nature of
personal jurisdiction.

															The validity of an order of a federal court depends upon that
court's having jurisdiction over both the subject matter and the
parties. Stoll v. Gottlieb, 305 U.
S. 165 , 305 U. S.
171 -172 (1938); Thompson v.
Whitman , 18 Wall. 457, 85 U. S. 465 (1874). The concepts of subject matter and personal jurisdiction,
however, serve different purposes, and these different purposes
affect the legal character of the two requirements. Petitioners
fail to recognize the distinction between the two concepts --
speaking instead in general terms of "jurisdiction" -- although
their argument's strength comes from conceiving of jurisdiction
only as subject matter jurisdiction.

															Federal courts are courts of limited jurisdiction. The character
of the controversies over which federal judicial authority may
extend are delineated in Art. III, § 2, cl. 1. Jurisdiction of the
lower federal courts is further limited to those subjects
encompassed within a statutory grant of jurisdiction. Again, this
reflects the constitutional source of federal judicial power: apart
from this Court, that power only Page 456 U. S. 702 exists "in such inferior Courts as the Congress may from time to
time ordain and establish." Art. III, § 1

															Subject matter jurisdiction, then, is an Art. III, as well as a
statutory, requirement; it functions as a restriction on federal
power, and contributes to the characterization of the federal
sovereign. Certain legal consequences directly follow from this.
For example, no action of the parties can confer subject matter
jurisdiction upon a federal court. Thus, the consent of the parties
is irrelevant, California v. LaRue, 409 U.
S. 109 (1972), principles of estoppel do not apply, American Fire & Casualty Co. v. Finn, 341 U. S.
6 , 341 U. S. 17 -18
(1951), and a party does not waive the requirement by failing to
challenge jurisdiction early in the proceedings. Similarly, a
court, including an appellate court, will raise lack of subject
matter jurisdiction on its own motion.

															"[T]he rule, springing from the nature and limits of the
judicial power of the United States, is inflexible and without
exception, which requires this court, of its own motion, to deny
its jurisdiction and, in the exercise of its appellate power, that
of all other courts of the United States, in all cases where such
jurisdiction does not affirmatively appear in the record." Mansfield, C. & L. M. R. Co. v. Swan, 111 U.
S. 379 , 111 U. S. 382 (1884). [ Footnote 9 ]

															None of this is true with respect to personal jurisdiction. The
requirement that a court have personal jurisdiction flows not from
Art. III, but from the Due Process Clause: the personal
jurisdiction requirement recognizes and protects an individual
liberty interest. It represents a restriction on judicial power not
as a matter of sovereignty, but as a matter of individual liberty.
[ Footnote 10 ] Thus, the test
for personal jurisdiction Page 456 U. S. 703 requires that "the maintenance of the suit . . . not offend traditional notions of fair play and substantial justice.'" International Shoe Co. v. Washington, 326 U.
S. 310 , 326 U. S. 316 (1945), quoting Milliken v. Meyer, 311 U.
S. 457 , 311 U. S. 463 (1940). Because the requirement of personal jurisdiction represents
first of all an individual right, it can, like other such rights,
be waived. In McDonald v. Mabee, supra, the Court
indicated that, regardless of the power of the State to serve
process, an individual may submit to the jurisdiction of the court
by appearance. A variety of legal arrangements have been taken to
represent express or implied consent to the personal jurisdiction
of the court. In National Equipment Rental, Ltd. v.
Szukhent, 375 U. S. 311 , 375 U. S. 316 (1964), we Page 456 U. S. 704 stated that "parties to a contract may agree in advance to
submit to the jurisdiction of a given court," and, in Petrowski
v. Hawkeye-Security Co., 350 U. S. 495 (1956), the Court upheld the personal jurisdiction of a District
Court on the basis of a stipulation entered into by the defendant.
In addition, lower federal courts have found such consent implicit
in agreements to arbitrate. See Victory Transport Inc. v.
Comisaria General de Abastecimientos y Transportes, 336 F.2d
354 (CA2 1964); 2 J. Moore & J. Lucas, Moore's Federal Practice
� 4.02[3], n. 22 (1982), and cases listed there. Furthermore, the
Court has upheld state procedures which find constructive consent
to the personal jurisdiction of the state court in the voluntary
use of certain state procedures. See Adam v. Saenger, 303 U. S. 59 , 303 U. S. 67 -68
(1938) ("There is nothing in the Fourteenth Amendment to prevent a
state from adopting a procedure by which a judgment in
personam may be rendered in a cross-action against a plaintiff
in its courts. . . . It is the price which the state may exact as
the condition of opening its courts to the plaintiff "); Chicago Life Ins. Co. v. Cherry, 244 U. S.
25 , 244 U. S. 29 -30
(1917) ("[W]hat acts of the defendant shall be deemed a submission
to [a court's] power is a matter upon which States may differ").
Finally, unlike subject matter jurisdiction, which even an
appellate court may review sua sponte, under Rule 12(h),
Federal Rules of Civil Procedure, "[a] defense of lack of
jurisdiction over the person . . . is waived" if not timely raised
in the answer or a responsive pleading.

															In sum, the requirement of personal jurisdiction may be
intentionally waived, or, for various reasons, a defendant may be
estopped from raising the issue. These characteristics portray it
for what it is -- a legal right protecting the individual. The
plaintiff's demonstration of certain historical facts may make
clear to the court that it has personal jurisdiction over the
defendant as a matter of law -- i.e., certain factual
showings will have legal consequences -- but this is not the only
way in which the personal jurisdiction of the court may arise. The
actions of the defendant may amount to a legal submission Page 456 U. S. 705 to the jurisdiction of the court, whether voluntary or not.

															The expression of legal rights is often subject to certain
procedural rules: the failure to follow those rules may well result
in a curtailment of the rights. Thus, the failure to enter a timely
objection to personal jurisdiction constitutes, under Rule
12(h)(1), a waiver of the objection. A sanction under Rule
37(b)(2)(A) consisting of a finding of personal jurisdiction has
precisely the same effect. As a general proposition, the Rule 37
sanction applied to a finding of personal jurisdiction creates no
more of a due process problem than the Rule 12 waiver. Although "a
court cannot conclude all persons interested by its mere assertion
of its own power," Chicago Life Ins. Co. v. Cherry, supra, at 244 U. S. 29 ,
not all rules that establish legal consequences to a party's own
behavior are "mere assertions" of power.

															Rule 37(b)(2)(A) itself embodies the standard established in Hammond Packing Co. v. Arkansas, 212 U.
S. 322 (1909), for the due process limits on such rules.
[ Footnote 11 ] There the
Court held that it did not violate due process for a state court to
strike the answer and render a default judgment against a defendant
who failed to comply with a pretrial discovery order. Such a rule
was permissible as an expression of

															"the undoubted right of the lawmaking power to create a
presumption of fact as to the bad faith and untruth of an answer
begotten from the suppression or failure to produce the proof
ordered. . . . [T]he preservation of due process was secured by the
presumption that the refusal to produce evidence material to the
administration of due process was but an admission of the want of
merit in the asserted defense." Id. at 212 U. S.
350 -351. Page 456 U. S. 706 The situation in Hammond was specifically distinguished
from that in Hovey v. Elliott, 167 U.
S. 409 (1897), in which the Court held that it did
violate due process for a court to take similar action as
"punishment" for failure to obey an order to pay into the registry
of the court a certain sum of money. Due process is violated only
if the behavior of the defendant will not support the Hammond
Packing presumption. A proper application of Rule 37(b)(2)
will, as a matter of law, support such a presumption. See
Societe Internationale v. Rogers, 357 U.
S. 197 , 357 U. S.
209 -213 (1958). If there is no abuse of discretion in
the application of the Rule 37 sanction, as we find to be the case
here ( see 456 U. S. then the
sanction is nothing more than the invocation of a legal
presumption, or what is the same thing, the finding of a
constructive waiver.

															Petitioners argue that a sanction consisting of a finding of
personal jurisdiction differs from all other instances in which a
sanction is imposed, including the default judgment in Hammond
Packing, because a party need not obey the orders of a court
until it is established that the court has personal jurisdiction
over that party. If there is no obligation to obey a judicial
order, a sanction cannot be applied for the failure to comply.
Until the court has established personal jurisdiction, moreover,
any assertion of judicial power over the party violates due
process.

															This argument again assumes that there is something unique about
the requirement of personal jurisdiction which prevents it from
being established or waived like other rights. A defendant is
always free to ignore the judicial proceedings, risk a default
judgment, and then challenge that judgment on jurisdictional
grounds in a collateral proceeding. See Baldwin v. Traveling
Men's Assn., 283 U. S. 522 , 283 U. S. 525 (1931). By submitting to the jurisdiction of the court for the
limited purpose of challenging jurisdiction, the defendant agrees
to abide by that court's determination on the issue of
jurisdiction: that decision will be res judicata on that
issue in any further proceedings. Id. at 283 U. S. 524 ; American Surety
Co. Page 456 U. S. 707 v. Baldwin, 287 U. S. 156 , 287 U. S. 166 (1932). As demonstrated above, the manner in which the court
determines whether it has personal jurisdiction may include a
variety of legal rules and presumptions, as well as straightforward
factfinding. A particular rule may offend the due process standard
of Hammond Packing, but the mere use of procedural rules
does not, in itself, violate the defendant's due process
rights. III Even if Rule 37(b)(2) may be applied to support a finding of
personal jurisdiction, the question remains as to whether it was
properly applied under the circumstances of this case. Because the
District Court's decision to invoke the sanction was accompanied by
a detailed explanation of the reasons for that order, and because
that decision was upheld as a proper exercise of the District
Court's discretion by the Court of Appeals, this issue need not
detain us for long. What was said in National Hockey League v.
Metropolitan Hockey Club, Inc., 427 U.
S. 639 , 427 U. S. 642 (1976), is fully applicable here:

															"The question, of course, is not whether this Court, or whether
the Court of Appeals, would, as an original matter, have [applied
the sanction]; it is whether the District Court abused its
discretion in so doing."

															(Citations omitted.) For the reasons that follow, we hold that
it did not.

															Rule 37(b)(2) contains two standards -- one general and one
specific -- that limit a district court's discretion. First, any
sanction must be "just"; second, the sanction must be specifically
related to the particular "claim" which was at issue in the order
to provide discovery. While the latter requirement reflects the
rule of Hammond Packing, supra, the former represents the
general due process restrictions on the court's discretion.

															In holding that the sanction in this case was "just," we rely
specifically on the following. First, the initial discovery request
was made in July, 1977. Despite repeated orders from the court to
provide the requested material, on December 21, 1978, the District
Court was able to state that the petitioners Page 456 U. S. 708 "haven't even made any effort to get this information up to this
point." 1 App. 112a. The court then warned petitioners of a
possible sanction. Confronted with continued delay and an obvious
disregard of its orders, the trial court's invoking of its powers
under Rule 37 was clearly appropriate. Second, petitioners
repeatedly agreed to comply with the discovery orders within
specified time periods. In each instance, petitioners failed to
comply with their agreements. Third, respondent's allegation that
the court had personal jurisdiction over petitioners was not a
frivolous claim, and its attempt to use discovery to substantiate
this claim was not, therefore, itself a misuse of judicial process.
The substantiality of the jurisdictional allegation is demonstrated
by the fact that the District Court found, as an alternative ground
for its jurisdiction, that petitioners had sufficient contacts with
Pennsylvania to fall within the State's long-arm statute. Supra at 456 U. S. 699 .
Fourth, petitioners had ample warning that a continued failure to
comply with the discovery orders would lead to the imposition of
this sanction. Furthermore, the proposed sanction made it clear
that, even if there was not compliance with the discovery order,
this sanction would not be applied if petitioners were to "produce
statistics and other information" that would indicate an absence of
personal jurisdiction. 1 App. 116a. In effect, the District Court
simply placed the burden of proof upon petitioners on the issue of
personal jurisdiction. [ Footnote
12 ] Petitioners failed to comply with the discovery order; they
also failed to make any attempt to meet this burden of proof. This
course of behavior, coupled with the ample warnings, demonstrates
the "justice" of the trial court's order.

															Neither can there be any doubt that this sanction satisfies the
second requirement. CBG was seeking through discovery Page 456 U. S. 709 to respond to petitioners' contention that the District Court
did not have personal jurisdiction. Having put the issue in
question, petitioners did not have the option of blocking the
reasonable attempt of CBG to meet its burden of proof. It surely
did not have this option once the court had overruled petitioners'
objections. Because of petitioners' failure to comply with the
discovery orders, CBG was unable to establish the full extent of
the contacts between petitioners and Pennsylvania, the critical
issue in proving personal jurisdiction. Petitioners' failure to
supply the requested information as to its contacts with
Pennsylvania supports "the presumption that the refusal to produce
evidence . . . was but an admission of the want of merit in the
asserted defense." Hammond Packing, 212 U.S. at 212 U. S. 351 .
The sanction took as established the facts -- contacts with
Pennsylvania -- that CBG was seeking to establish through
discovery. That a particular legal consequence -- personal
jurisdiction of the court over the defendants -- follows from this
does not in any way affect the appropriateness of the sanction. IV Because the application of a legal presumption to the issue of
personal jurisdiction does not, in itself, violate the Due Process
Clause, and because there was no abuse of the discretion granted a
district court under Rule 37(b)(2), we affirm the judgment of the
Court of Appeals. So ordered. [ Footnote 1 ]

															The petition with which we deal in this case was filed as a
cross-petition in response to the petition for certiorari filed in
No. 81-290, Compagnie des Bauxites de Guinee v. Insurance Corp.
of Ireland, Ltd. We granted the cross-petition, limiting the
grant to the question of the validity of the Rule 37(b)(2)
sanction. 454 U.S. 963 (1981). We shall refer to the
cross-petitioners as "petitioners" and to the cross-respondent as
"respondent."

															[ Footnote 2 ]

															The District Court described these excess insurers as
follows:

															"Of the 21 Excess Insurers, five are English companies
representing English domestic interests but insuring risks
throughout the world, particularly in Pennsylvania. Seven are
English companies which represent non English parents, or
affiliates. The United States, Japan and Israel are the
nationalities of two each of the Excess Insurer Defendants.
Switzerland and the Republic of Ireland are the nationalities of
one each of the Excess Insurer Defendants. The remaining Excess
Insurer Defendant is a Belgium Company which represents the United
States parent."

															App. 196a.

															[ Footnote 3 ]

															Four of the excess insurers did not contest personal
jurisdiction in the District Court. Id. at 105a. The Court
of Appeals directed the dismissal of the complaint with respect to
three others. Compagnie des Bauxites de Guinee v. Insurance Co.
of North America, 651 F.2d 877, 886 (1981). CBG challenges the
latter action in its petition for certiorari in No. 81-290.

															[ Footnote 4 ]

															One of the excess insurers, L'Union Atlantique S.A.
d'Assurances, does business in Brussels, and was sent a separate
placing slip.

															[ Footnote 5 ]

															The motion for summary judgment was filed on May 20, 1977. In
it, 17 of the excess insurers alleged a lack of in
personam jurisdiction and all 21 excess insurers sought
dismissal on the ground of forum non conveniens. The
District Court denied the motion on April 19, 1979.

															[ Footnote 6 ]

															On March 22, 1979, the excess insurers instituted a suit against
CBG in England, attacking the validity of the insurance contract.
In its April 19 decision, the District Court found that "the
commencement of the separate action in England [was] oppressive,
unfair, and an act of bad faith under all of the circumstances." 1
App. 203a. It,therefore enjoined the continuation of that suit.
This aspect of the District Court decision was reversed by the
Court of Appeals. Respondent seeks certiorari review of that
decision ( see n 1, supra ).

															[ Footnote 7 ]

															It reversed as to three of the excess insurers on the grounds
that they had complied with the discovery orders and that their
contacts with Pennsylvania were not sufficient to justify exercise
of the Pennsylvania long-arm statute. It also held that the
District Court had abused its discretion in enjoining the action in
England. Judge Gibbons dissented on the propriety of the sanction,
arguing that the District Court had abused its discretion. He also
expressed some doubt that a Rule 37 sanction could ever be used as
the source of personal jurisdiction. 651 F.2d at 892, n. 4.

															[ Footnote 8 ]

															In Familia de Boom, the Fifth Circuit held that a
sanction under Rule 37(b)(2) is valid only if the court has
personal jurisdiction over the party that has refused compliance
with a court order. Personal jurisdiction must, it held, appear
from the record independently of the sanction. The Courts of
Appeals for the Fourth and Eighth Circuits, on the other hand, have
agreed with the Third Circuit on the appropriateness of a sanction
on the issue of personal jurisdiction. Lekkas v. Liberian MIV
Caledonia, 443 F.2d 10, 11 (CA4 1971); English v. 21st
Phoenix Corp., 590 F.2d 723 (CA8 1979).

															[ Footnote 9 ]

															A party that has had an opportunity to litigate the question of
subject matter jurisdiction may not, however, reopen that question
in a collateral attack upon an adverse judgment. It has long been
the rule that principles of res judicata apply to
jurisdictional determinations -- both subject matter and personal. See Chicot County Drainage Dist. v. Baxter State Bank, 308 U. S. 371 (1940); Stoll v. Gottlieb, 305 U.
S. 165 (1938).

															[ Footnote 10 ]

															It is true that we have stated that the requirement of personal
jurisdiction, as applied to state courts, reflects an element of
federalism and the character of state sovereignty vis-a-vis other States. For example, in World-Wide
Volkswagen Corp. v. Woodson, 444 U. S. 286 , 444 U. S.
291 -292 (1980), we stated:

															"[A] state court may exercise personal jurisdiction over a
nonresident defendant only so long as there exist 'minimum
contacts' between the defendant and the forum State. The concept of
minimum contacts, in turn, can be seen to perform two related, but
distinguishable, functions. It protects the defendant against the
burdens of litigating in a distant or inconvenient forum. And it
acts to ensure that the States, through their courts, do not reach
out beyond the limits imposed on them by their status as coequal
sovereigns in a federal system."

															(Citation omitted.) Contrary to the suggestion of JUSTICE
POWELL, post at 713-714, our holding today does not alter
the requirement that there be "minimum contacts" between the
nonresident defendant and the forum State. Rather, our holding
deals with how the facts needed to show those "minimum contacts"
can be established when a defendant fails to comply with
court-ordered discovery. The restriction on state sovereign power
described in World-Wide Volkswagen Corp., however, must be
seen as ultimately a function of the individual liberty interest
preserved by the Due Process Clause. That Clause is the only source
of the personal jurisdiction requirement, and the Clause itself
makes no mention of federalism concerns. Furthermore, if the
federalism concept operated as an independent restriction on the
sovereign power of the court, it would not be possible to waive the
personal jurisdiction requirement: individual actions cannot change
the powers of sovereignty, although the individual can subject
himself to powers from which he may otherwise be protected.

															[ Footnote 11 ]

															The Advisory Committee Notes to the Rule specifically stated
that "the provisions of the rule find support in [ Hammond
Packing Co. v. Arkansas, 212 U. S. 322 (1909)]." Final Report of Advisory Committee on Rules for Civil
Procedure 25 (1937). See also Societe Internationale v.
Rogers, 357 U. S. 197 , 357 U. S. 209 (1958).

															[ Footnote 12 ]

															Counsel for petitioners agreed to this characterization of the
sanction at oral argument. Tr. of Oral Arg. 47-48.

															JUSTICE POWELL, concurring in the judgment.

															The Court rests today's decision on a constitutional distinction
between "subject matter" and " in personam " jurisdiction.
Under this distinction, subject matter jurisdiction defines an Art.
III limitation on the power of federal courts. By contrast, the
Court characterizes the limits on in personam jurisdiction
solely in terms of waivable personal rights and notions of "fair
play." Having done so, it determines Page 456 U. S. 710 that fundamental questions of judicial power do not arise in
this case concerning the personal jurisdiction of a federal
district court.

															In my view, the Court's broadly theoretical decision
misapprehends the issues actually presented for decision. Federal
courts are courts of limited jurisdiction. Their personal
jurisdiction, no less than their subject matter jurisdiction, is
subject both to constitutional and to statutory definition. When
the applicable limitations on federal jurisdiction are identified,
it becomes apparent that the Court's theory could require a
sweeping, but largely unexplicated, revision of jurisdictional
doctrine. This revision could encompass not only the personal
jurisdiction of federal courts but "sovereign" limitations on state
jurisdiction as identified in World-Wide Volkswagen Corp. v.
Woodson, 444 U. S. 286 , 444 U. S.
291 -293 (1980). Fair resolution of this case does not
require the Court's broad holding. Accordingly, although I concur
in the Court's judgment, I cannot join its opinion. I This lawsuit began when the respondent Compagnie des Bauxites
brought a contract action against the petitioner insurance
companies in the United States District Court for the Western
District of Pennsylvania. Alleging diversity jurisdiction,
respondent averred that the District Court had personal
jurisdiction of the petitioners, all foreign corporations, under
the long-arm statute of the State of Pennsylvania. See
Compagnie des Bauxites de Guinea v. Insurance Co. of North
America, 651 F.2d 877, 880-881 (CA3 1981). Petitioners,
however, denied that they were subject to the court's personal
jurisdiction under that or any other statute. Viewing the question
largely as one of fact, the court ordered discovery to resolve the
dispute.

															Meantime, while respondent unsuccessfully sought compliance with
its discovery requests, petitioners brought a parallel action in
England's High Court of Justice, Queens Bench Page 456 U. S. 711 Division. It was at this juncture that the current issues arose.
Seeking to enjoin the English proceedings, respondent sought an
injunction in the District Court. Petitioners protested that they
were not subject to that court's personal jurisdiction, and thus
that they lay beyond its injunctive powers. But the District Court
disagreed. As a jurisdictional prerequisite to its entry of the
injunction, the court upheld its personal jurisdiction over
petitioners. [ Footnote 2/1 ] It
characterized its finding of jurisdiction partly as a sanction for
petitioners' noncompliance with its discovery orders under Federal
Rule of Civil Procedure 37(b). [ Footnote 2/2 ]

															Rule 37(b) is not, however, a jurisdictional provision. As
recognized by the Court of Appeals, the governing jurisdictional
statute remains the long-arm statute of the State of Pennsylvania. See 651 F.2d at 881. In my view, the Court fails to make
clear the implications of this central fact: that the District
Court in this case relied on state law to obtain personal
jurisdiction.

															As courts of limited jurisdiction, the federal district courts
possess no warrant to create jurisdictional law of their own. Under
the Rules of Decision Act, 28 U.S.C. § 1652, they must apply state
law "except where the Constitution or treaties of the United States
or Acts of Congress otherwise require or provide. . . ." See
generally Erie R. Co. v. Tompkins, 304 U. S.
64 (1938). Thus, in the absence of a federal rule or
statute establishing a federal basis for the assertion of personal
jurisdiction, the personal jurisdiction of the district courts is
determined in diversity cases by the law of the forum State. See, e.g., Intermeat, Inc. v. American Poultry Co., 575
F.2d 1017 (CA2 1978); Wilkerson v. Fortuna Corp., Page 456 U. S. 712 554 F.2d 745 (CA5), cert. denied, 434 U.S. 939 (1977); Poyner v. Erma Werke Gmbh, 618 F.2d 1186, 1187 (CA6 1980); Lakeside Bridge & Steel Co. v. Mountain State Constr.
Co., 597 F.2d 596 (CA7 1979), cert. denied, 445 U. S. 907 (1980); Lakota Girl Scout Council, Inc. v. Havey Fundraising
Management, Inc., 519 F.2d 634 (CA8 1975); Arrowsmith v.
United Press International, 320 F.2d 219, 226 (CA2 1963); Forsythe v. Overmyer, 576 F.2d 779, 782 (CA9), cert.
denied, 439 U.S. 864 (1978); Quarles v. Fuqua Industries,
Inc., 504 F.2d 1358 (CA10 1974). [ Footnote 2/3 ]

															As a result of the District Court's dependence on the law of
Pennsylvania to establish personal jurisdiction -- a dependence
mandated by Congress under 28 U.S.C. § 1652 -- its jurisdiction in
this case normally would be subject to the same due process
limitations as a state court. See, e.g., Forsythe v. Overmyer,
supra, at 782; Washington v. Norton Mfg., Inc., 588
F.2d 441, 445 (CA5 1979); Fisons Ltd. v. United States, 458 F.2d 1241, 1250 (CA7 1972). [ Footnote 2/4 ] Thus, the question arises how today's
decision is related to cases restricting the personal jurisdiction
of the States.

															Before today, our decisions had established that "minimum
contacts" represented a constitutional prerequisite to the exercise
of in personam jurisdiction over an unconsenting
defendant. See, e.g., World-Wide Volkswagen Corp. v.
Woodson, Page 456 U. S. 713 444 U.S. at 444 U. S.
291 -293; Hanson v. Denckla, 357 U.
S. 235 , 357 U. S. 251 (1958); International Shoe Co. v. Washington, 326 U.
S. 310 , 326 U. S. 316 (1945). In the absence of a showing of minimum contacts, a finding
of personal jurisdiction over an unconsenting defendant, even as a
sanction, therefore would appear to transgress previously
established constitutional limitations. The cases cannot be
reconciled by a simple distinction between the constitutional
limits on state and federal courts. Because of the District Court's
reliance on the Pennsylvania long-arm statute -- the applicable
jurisdictional provision under the Rules of Decisions Act -- the
relevant constitutional limits would not be those imposed directly
on federal courts by the Due Process Clause of the Fifth Amendment,
but those applicable to state jurisdictional law under the
Fourteenth.

															The Court's decision apparently must be understood as related to
our state jurisdictional cases in one of two ways. Both involve
legal theories that fail to justify the doctrine adopted by the
Court in this case. A Under traditional principles, the due process question in this
case is whether "minimum contacts" exist between petitioners and
the forum State that would justify the State in exercising personal
jurisdiction. See, e.g., World-Wide Volkswagen Corp. v.
Woodson, supra, at 444 U. S.
291 -293; Shaffer v. Heitner, 433 U.
S. 186 , 433 U. S. 216 (1977); Hanson v. Denckla, supra, at 357 U. S. 251 .
By finding that the establishment of minimum contacts is not a
prerequisite to the exercise of jurisdiction to impose sanctions
under Federal Rule of Civil Procedure 37, the Court may be
understood as finding that "minimum contacts" no longer are a
constitutional requirement for the exercise by a state court of
personal jurisdiction over an unconsenting defendant. [ Footnote 2/5 ] Whenever the Court's
notions Page 456 U. S. 714 of fairness are not offended, jurisdiction apparently may be
upheld.

															Before today, of course, our cases had linked minimum contacts
and fair play as jointly defining the "sovereign" limits
on state assertions of personal jurisdiction over unconsenting
defendants. See World-Wide Volkswagen Corp. v. Woodson,
supra, at 444 U. S.
292 -293; see Hanson v. Denckla, supra, at 357 U. S. 251 .
The Court appears to abandon the rationale of these cases in a
footnote. See ante at 456 U. S.
702 -703, n. 10. But it does not address the implications
of its action. By eschewing reliance on the concept of minimum
contacts as a "sovereign" limitation on the power of States -- for,
again, it is the State's long-arm statute that is invoked to obtain
personal jurisdiction in the District Court -- the Court today
effects a potentially substantial change of law. For the first
time, it defines personal jurisdiction solely by reference to
abstract notions of fair play. And, astonishingly to me, it does so
in a case in which this rationale for decision was neither argued
nor briefed by the parties. B Alternatively, it is possible to read the Court opinion not as
affecting state jurisdiction, but simply as asserting that Rule 37
of the Federal Rules of Civil Procedure represents a
congressionally approved basis for the exercise of personal
jurisdiction by a federal district court. On this view, Rule 37
vests the federal district courts with authority to take
jurisdiction over persons not in compliance with discovery orders.
This of course would be a more limited holding. Yet the Court does
not cast its decision in these terms. And it provides no support
for such an interpretation, either in the language or in the
history of the Federal Rules. Page 456 U. S. 715 In the absence of such support, I could not join the Court in
embracing such a construction of the Rules of Civil Procedure.
[ Footnote 2/6 ] There is nothing in
Rule 37 to suggest that it is intended to confer a grant of
personal jurisdiction. Indeed, the clear language of Rule 82 seems
to establish that Rule 37 should not be construed as a
jurisdictional grant: "These rules shall not be construed to extend
. . . the jurisdiction of the United States district courts or the
venue of actions therein." Moreover, assuming that minimum contacts
remain a constitutional predicate for the exercise of a State's in personam jurisdiction over an unconsenting defendant,
constitutional questions would arise if Rule 37 were read to permit
a plaintiff in a diversity action to subject a defendant to a
"fishing expedition" in a foreign jurisdiction. A plaintiff is not
entitled to discovery to establish essentially speculative
allegations necessary to personal jurisdiction. Nor would the use
of Rule 37 sanctions to enforce discovery orders constitute a mere
abuse of discretion in such a case. [ Footnote 2/7 ] For me, at least, such a use of discovery
would raise serious questions as to the constitutional, as well as
the statutory, authority of a federal court -- in a diversity case
-- to exercise personal jurisdiction Page 456 U. S. 716 absent some showing of minimum contacts between the unconsenting
defendant and the forum State. II In this case, the facts alone -- unaided by broad jurisdictional
theories -- more than amply demonstrate that the District Court
possessed personal jurisdiction to impose sanctions under Rule 37,
and otherwise to adjudicate this case. I would decide the case on
this narrow basis.

															As recognized both by the District Court and the Court of
Appeals, the respondent adduced substantial support for its
jurisdictional assertions. By affidavit and other evidence, it made
a prima facie showing of "minimum contacts." See 651 F.2d at 881-882, 886, and n. 9. In the view of the District
Court, the evidence adduced actually was sufficient to sustain a
finding of personal jurisdiction independently of the Rule 37
sanction. App. to Pet. for Cert. 51a, 53a. [ Footnote 2/8 ]

															Where the plaintiff has made a prima facie showing of
minimum contacts, I have little difficulty in holding that its
showing was sufficient to warrant the District Court's entry of
discovery orders. And where a defendant then fails to comply with
those orders, I agree that the prima facie showing may be
held adequate to sustain the court's finding that minimum contacts
exist, either under Rule 37 or under a theory of "presumption" or
"waiver."

															Finding that the decision of the Court of Appeals should be
affirmed on this ground, I concur in the judgment of the Court.

															[ Footnote 2/1 ]

															A district court must have personal jurisdiction over a party
before it can enjoin its actions. Zenith Radio Corp. v.
Hazeltine Research, Inc., 395 U. S. 100 , 395 U. S.
111 -112 (1969).

															[ Footnote 2/2 ]

															The court also found that petitioners, in fact, had undertaken
sufficient business activity in the State to bring them within the
reach of the Pennsylvania long-arm statute. See App. to
Pet. for Cert. 51a, 53a.

															[ Footnote 2/3 ]

															As Judge Friendly explained in the leading case of Arrowsmith v. United Press International, 320 F.2d at
226:

															"State statutes determining what foreign corporations may be
sued, for what, and by whom, are not mere whimsy; like most
legislation they represent a balancing of various considerations --
for example, affording a forum for wrongs connected with the state
and conveniencing resident plaintiffs, while avoiding the
discouragement of activity within the state by foreign
corporations. We see nothing in the concept of diversity
jurisdiction that should lead us to read into the governing
statutes a Congressional mandate, unexpressed by Congress itself,
to disregard the balance thus struck by the states."

															[ Footnote 2/4 ]

															It is not contended that there is any federal basis for the
exercise of personal jurisdiction by the District Court.

															[ Footnote 2/5 ]

															The Court refers to the respondent's prima facie showing of "minimum contacts" only as one factor indicating that
the District Court did not abuse its discretion in entering a
finding of personal jurisdiction as a sanction under Rule 37(b). See ante at 456 U. S. 708 .
Generally it views the requirement of personal jurisdiction as a
right that may be "established or waived like other rights." Ante at 456 U. S.
706 .

															[ Footnote 2/6 ]

															Jurisdiction over the person generally is dealt with by Rule 4,
governing the methods of service through which personal
jurisdiction may be obtained. Although Rule 4 deals expressly only
with service of process, not with the underlying jurisdictional
prerequisites, jurisdiction may not be obtained unless process is
served in compliance with applicable law. See, e.g., Intermeat,
Inc. v. American Poultry Co., 575 F.2d 1017 (CA2 1978); Washington v. Norton Mfg., Inc., 588 F.2d 441, 445 (CA5
1979); D. Currie, Federal Courts 858 (2d ed.1975). For this reason,
Rule 4 frequently has been characterized as a jurisdictional
provision. See, e.g., 374 U.S. 869 (1963) (statement of
Black and Douglas, JJ., dissenting from adoption of amendments to
the Federal Rules of Civil Procedure); Currie, supra, at
858; Foster, Long-Arm Jurisdiction in Federal Courts, 1969
Wis.L.Rev. 9, 11. As applicable here, Rule 4 relies expressly on
state law. See Fed.Rules Civ.Proc. 4(d)(7) and (e).

															[ Footnote 2/7 ] Compare the Court's view. Ante at 456 U.S. 707 .

															[ Footnote 2/8 ]

															The Court of Appeals deemed it unnecessary to review this
alternative basis for the District Court's finding of jurisdiction. See 651 F.2d at 886, and n. 9.