Discovery requests in product liability litigation matters are often a costly and time-consuming black hole. They consume precious resources manufacturers and distributors could use to build up their businesses and, worse, often force exposure of sensitive internal communications and materials. What to do? Well, a seldom-explored legal tool to avoid the expenses and resources demanded by such requests, protecting certain documents from discovery, is the self-critical analysis, or self-evaluative, privilege. This article traces the history of the privilege and the current law in the Seventh Circuit.
The self-critical analysis privilege provides qualified protection from discovery for certain evaluative analyses that take a critical look at the product or process in question. This privilege can apply to a variety of situations that companies dealing with products confront every day, including post-accident investigations, anonymous employee submissions suggesting how employers can improve, or reviews from a designated committee. For instance, a district court applied the privilege to “Accident Analysis” and “Committee Recommendations” in an Amtrak investigation committee report following an on-the-job accident.1 Another district court applied the privilege to in-house investigative files, apart from the factual data of the accident’s date, place, event information, and name and address of the reporter.2
As the U.S. District Court for the District of Massachusetts explained, the privilege exists to “protect the opinions and recommendations of corporate employees engaged in the process of critical self-evaluation of the company’s policies for the purpose of improving health and safety.”3 Another district court said that “[t]he privilege seeks to encourage candid self-criticism” and “prevent[s] a ‘chilling’ effect on self-analysis and self-evaluation prepared for the purpose of protecting the public by instituting practices assuring safer operations.”4 Requiring businesses to disclose this sort of information will “almost inevitably . . . result in some cramping of the investigative process, simply because the incentives for any institution to engage in self-evaluative investigation pale considerably with the knowledge that the results may be used against it.”5 To keep fear of later disclosure from hamstringing a company’s open and honest self-analysis, protection is necessary.
The privilege has its roots in the 1970 case, Bredice v. Hospital Inc., where the U.S. District Court for the District of Columbia held that minutes and reports drafted by a hospital’s peer review committee were not discoverable in a medical malpractice case because the value of the meetings “would be destroyed” if “opened to the discovery process.”6 The court concluded that “constructive professional criticism cannot occur in an atmosphere of apprehension that one doctor’s suggestion will be used as a denunciation of a colleague’s conduct in a malpractice suit.”7 Since Bredice was decided, most federal courts of appeal have refused to recognize the privilege wholesale, due to inconsistent case-by-case application, but have permitted individual district courts to decide for themselves whether to apply the privilege to the facts of each case.8
Courts that recognize the privilege do so on public policy grounds, favoring candid employer and employee communications and encouraging businesses to take the initiative to improve health and safety for the benefit of the public. “[T]he fundamental purpose of the privilege is to “protect from disclosure documents containing candid and potentially damaging self-criticism.”9 Because the privilege ”is grounded on the premise that ‘disclosure of documents reflecting candid self-examination will deter or suppress socially useful investigations and evaluations or compliance with the law,’” the Court must “balance the public interest in protecting candid corporate self-assessments against the private interest of the litigant in obtaining all relevant documents through discovery.”10
While the Seventh Circuit recognizes the existence of the self-critical analysis privilege,11 it has refused to adopt the privilege as Seventh Circuit common law, meaning it is not a guarantee that the privilege will be found to apply in various courts throughout the Seventh Circuit.12 However, a district court within the Seventh Circuit stated that “[i]n this absence of binding authority, and recognizing that most courts afford some level of recognition to the privilege, this court presumes for purposes of this case that federal common law does recognize the privilege of self-critical analysis.”13
When determining whether the self-critical analysis privilege applies, “factual context is critical in determining the proper legal standard.”14 Courts apply a four-element test to determine whether to apply the privilege.15 In a tort context, the self-critical analysis privilege “does not require the party asserting the privilege to establish that the report was prepared in response to a governmental mandate.” Rather, courts look at whether the party asserting the privilege has established that (1) the information sought resulted from a critical self-analysis undertaken by the party seeking protection, (2) the public has a strong interest in preserving the free flow of the type of information sought, (3) the information is of the type whose flow would be curtailed if discovery were allowed, and (4) the document was prepared with the expectation that it would be kept confidential and has in fact been kept confidential.16
Tice v. American Airlines illustrates a successful invocation of the privilege by a district court in the Seventh Circuit. In Tice the plaintiffs, who were forced to retire, alleged the airline’s policies were merely a smokescreen for age discrimination.17 Plaintiffs sought access to private consultants’ “top to bottom” safety reports (“the Safety Reports”), which were commissioned by the airline.18 The defendant objected to disclosure of the Safety Reports under the self-critical analysis privilege.19 The district court recognized the underlying lawsuit was for employment discrimination and the Safety Reports were prepared pursuant to an FAA/governmental mandate.20 However, it found the tort/personal injury test was more appropriate because the Safety Reports were “done in order to maximize safety and prevent personal injuries or other torts.”21 Further, the plaintiffs sought the Safety Reports “not for objective statistical information, but in order to refute any safety related claims American Airlines’ may make to defend its employment practices with regard to the Flight Engineer position.”22 The court found American Airlines had sufficiently established the four elements, and “[t]he public has a strong interest in preserving the free flow of airline safety (monitoring and improvement) related information. . . . (C)ertainly the flow of internal airline safety information would be somewhat curtailed if discovery were allowed.”23 Finally, because the reports were prepared with the expectation they would be kept confidential, and in fact were kept confidential, the court held that the self-critical analysis privilege applied to the Safety Reports and denied the plaintiffs’ motion to compel their production.24
Particularly in light of the rising regulatory environment on issues from consumer-facing products to climate-related mandates, companies should consider the self-evaluative privilege as a litigation tool to potentially protect internal and confidential performance evaluations, internal investigations, and other self-critical analyses. The purpose of these evaluations is for the people who know the organization or incident best to uncover corporate shortcomings, to help ensure such an event does not happen again. For companies that make sure to satisfy the elements for relevant documents, and for counsel prepared to support an argument that privilege applies, self-critical analysis may serve as useful tool to avoid costly disclosure that chills a company’s attempts at self-improvement in the name of consumer safety.
This article was written with the assistance of summer associate J. J. Grinde.
8 For example, the D.C. Circuit recognizes the privilege, but the First Circuit has not yet weighed in on the issue, and while the Second Circuit generally refuses to recognize the privilege, it has not done so consistently, and district courts within the circuit have recognized the privilege. See, e.g., UBS Asset Mgt., Inc. v. Wood Gundy Corp., No. 95 CIV 5157(LLS), 1999 WL 294843 at *1 (S.D.N.Y. May 11, 1999); In re Crazy Eddie Sec. Litig., 792 F. Supp. 197 (E.D.N.Y. 1992).
11 “There can be no doubt that this privilege exists; that was, after all, what the Seventh Circuit said in Coates.” Scott v. City of Peoria, 280 F.R.D. 419, 423–24 (C.D. Ill. 2011) (internal quotes removed).