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March 12, 2019

The Self-Critical Analysis Privilege: Under Construction or Built on Shaky Ground?

Kelly J. Bundy

Where recognized, the self-critical analysis privilege—also referred to as the self-evaluative privilege or peer-review privilege—serves as a qualified privilege to protect certain self-critical, evaluative analyses from discovery.  The privilege seeks 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.”  In re Block Island Fishing, Inc., 323 F. Supp. 3d 158 (D. Mass. 2018).  Jurisdictions that recognize the self-critical analysis privilege do so because it encourages thorough and candid self-evaluation and compliance with the law.  Id. at 160 (citations omitted).  Presumably, companies and individuals are more likely to reflect candidly on their own practices if the risk of such evaluations becoming discoverable or being used against them does not exist.  Id. at 160-61 (citations omitted). A review and analysis of the cases recognizing and applying this privilege raises interesting questions regarding the potential applicability of the privilege in construction cases.

I. Recent Treatment of the Self-Critical Analysis Privilege.

In June 2018, the United States District Court for the District of Massachusetts addressed the applicability of the self-critical analysis privilege in Block Island Fishing.  Following the collision of a fishing vessel and tanker, the owner of the fishing vessel filed suit seeking a determination limiting its liability.  Block Island Fishing, 323 F. Supp. 3d at 160.  The owner of the tanker later sought to limit the scope of depositions to exclude the post-accident investigation it performed by asserting the self-critical analysis privilege.  Id.  

Adopting the four-part test outlined in O’Connor v. Chrysler Corp., 86 F.R.D. 211, 217 (D. Mass. 1980), the District of Massachusetts found that the owner prepared the accident investigation report pursuant to an international treaty, after the accident, and in an effort to identify the root cause of the accident, possible corrective actions and preventative measures to avoid future accidents. Id. at 162 (citing O’Connor and articulating the following four “potential guideposts” for application of the privilege: “(1) materials protected have generally been those prepared for mandatory governmental reports; (2) only subjective, evaluative materials have been protected; (3) objective data in those same reports have not been protected; and (4) in sensitivity to plaintiffs’ need for such materials, courts have denied discovery only where the policy favoring exclusion has clearly outweighed plaintiffs’ need.”)).  The court ultimately granted the owner’s request for a protective order, subject to the following conditions: (1) the owner demonstrating it performed the post-accident investigation and prepared its report based on the expectation that the information would be kept confidential and (2) the owner divulging the objective facts obtained during the investigation and contained within the accident report.  Block Island Fishing, 323 F. Supp. 3d at 163-64.  

II. The Self-Critical Analysis Privilege Is Not Universally Accepted or Consistently Applied.

If the self-critical analysis privilege sounds too good to be true, it may be.  Jurisdictions have not universally accepted it, and jurisdictions adopting the privilege have struggled to define its precise scope and applicability.  Reichhold Chems., Inc. v. Textron, Inc., 157 F.R.D. 522, 524-26 (N.D. Fla 1994) (applying the privilege to documents concerning cause and effect of pollution in case arising from the Comprehensive Environmental Response, Compensation and Liability Act); Granger v. Nat’l R.R. Passenger Corp., 116 F.R.D. 507, 508 (E.D. Pa. 1987) (applying the privilege to a portion of a railroad accident report with analysis and recommendations, but not to portions concerning cause and contributing factors, in a personal injury case); In re LTV Secs. Litig., 89 F.R.D. 595, 614 (N.D. Tex. 1981) (applying the privilege to a corporation’s internal investigation in a securities fraud class action lawsuit alleging conspiracy to defraud shareholders); Scott v. City of Peoria, 280 F.R.D. 419, 423 (C.D. Ill. 2011) (acknowledging the existence of the privilege and holding internal investigative reports prepared by a police department were not privileged in a § 1983 action); Bredice v. Doctor’s Hosp., Inc., 50 F.R.D. 249 (D.D.C. 1970) (internal evaluations of patient treatments privileged in a malpractice case); but see, Lewis v. Wells Fargo & Co., 266 F.R.D. 433, 439 (N.D. Cal. 2010) (privilege not available in the 9th Circuit); Roberts v. Hunt, 187 F.R.D. 71, 75 (W.D.N.Y. 1999) (relying upon United States Supreme Court opinion in Univ. of Pa. v. EEOC, 493 U.S. 182, 189 (1990), which rejected a peer review privilege as necessary to effective academic tenure decisions, and stating in dicta that neither the Second Circuit nor any other circuit has adopted the privilege); Syposs v. U.S., 63 F. Supp. 2d 301, 307-09 (W.D.N.Y. 1999) (privilege not available under Federal Tort Claims Act for medical peer review records); Zoom Imaging L.P. v. St. Luke’s Hosp. & Health Network, 513 F. Supp. 2d 411, 413-17 (E.D. Pa. 2007) (questioning existence of the privilege and declining to apply it to documents produced by consultant for organizational study of radiological practice); Witten v. AH Smith & Co., 100 F.R.D. 446 (D. Md. 1984) (affirmative action plans and EEO-1 reports discoverable and not subject to privilege).  While some courts apply the four-factor test set forth in O’Connor, other courts recognizing the privilege do not adhere to the same requirement that such documents be created pursuant to a government mandate.  See e.g., Morgan v. Union Pacific R. Co., 182 F.R.D. 261 (N.D. Ill. 1998) (differentiating between the legal standard applicable in employment cases versus tort cases with the latter not requiring a government mandate for documents to qualify as privileged).

III. The Future of the Self-Critical Analysis Privilege Is Murky.  

Whether jurisdictions will apply the self-critical analysis privilege in the context of construction cases has yet to be seen.  To date, most cases applying the privilege involve tort claims or other statutorily created causes of action.  The applicability of the privilege in the context of a breach of contract case seems tenuous at best.  Some of the cases applying the privilege raise questions concerning the admissibility of documents in certain cases, such as investigative reports and logs prepared in response to an OSHA investigation or other statutory or regulatory government mandates.  Cases like Block Island Fishing suggest that an argument for applying the privilege may hold water, but any objective data and facts in any such documents would likely have to be disclosed.  

IV. Take Care when Attempting to Use the Self-Critical Analysis Privilege to Shield Information and Documents from Discovery.

In the event such a privilege was found to be applicable to construction cases, industry professionals could better evaluate safety and other practices without fear of creating a minefield of discoverable documents.  While the future of the self-critical analysis privilege remains unclear, practitioners should pay specific attention to the recognition and treatment of the privilege in their jurisdictions before invoking it to shield documents from discovery.    At this time, practitioners are best served relying upon more universally recognized privileges and protections—attorney-client privilege, common-interest privilege or work-product doctrine—where applicable. Notably, as a qualified privilege, a party may overcome the privilege by showing extraordinary circumstances of special need, and, like other privileges, the self-critical analysis privilege may be waived.

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Kelly J. Bundy

Hirschler, Richmond, VA, Division 4 (Project Delivery Systems), Young Lawyers Division, Diversity Fellow