Home Medical Malpractice Can The Self-Critical Analysis Privilege Protect Sensitive Company Product Evaluations? – Product Liability & Safety

Can The Self-Critical Analysis Privilege Protect Sensitive Company Product Evaluations? – Product Liability & Safety

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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.

Footnotes

1. Granger v. Nat’l R.R. Passenger Corp.,
116 F.R.D. 507 (E.D. Pa. 1987).

2. Bradley v. Melroe Co., 141 F.R.D 1
(D.D.C.1992).

3. In re Block Island Fishing, Inc., 323 F.
Supp. 3d 158 (D. Mass. 2018).

4. Id. at 160–61.

5. Id.

6. Bredice v. Drs. Hosp., Inc., 50 F.R.D. 249,
250 (D.D.C 1970), aff’d, 479 F.2d 920 (D.C. Cir.
1973).

7. Id.

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).

9. Morgan v. Union Pac. R. Co., 182 F.R.D. 261,
264 (N.D. Ill. 1998).

10. Tice v. Am. Airlines, Inc., 192 F.R.D. 270,
272 (N.D. Ill. 2000) (citing Morgan, 182 F.R.D. at
264).

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).

12. See Burden-Meeks v. Welch, 319 F.3d 897, 899
(7th Cir. 2003).

13. Morgan, 182 F.R.D. at 264.

14. Scott v. City of Peoria, 280 F.R.D. 419, 424
(C.D. Ill. 2011).

15. Tice v. Am. Airlines, Inc., 192 F.R.D. 270,
272 (N.D. Ill. 2000).

16. Id. at 273 (quoting Morgan, 182
F.R.D. at 266).

17. Tice, 192 F.R.D. at 271.

18. Id. at 272.

19. Id.

20. Id. at 273.

21. Id.

22. Id.

23. Id.

24. Id. at 273–74.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.



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