July 23, 2014 Articles

Self-Critical Analysis Privilege: Does It Protect Manufacturers Seeking to Review and Improve Internal Practices and Procedures?

By Elisabeth M. McOmber

In the wake of GM's very public airing of its internal practices, including a much-publicized training PowerPoint page containing a list of words allegedly not to be used by GM engineers in internal reports and presentations, a few questions naturally arise: (1) whether and how product manufacturers can appropriately review, assess, and improve their internal practices and procedures while protecting these efforts from unnecessary public disclosure and from being used against them in litigation; and (2) whether public policy weighs against or in favor of such protection. Depending on the jurisdiction and court, some protection may be available under a qualified "self-critical analysis" privilege. Most courts have found that such a privilege is quite limited, however, and it is important to understand the nature of the privilege and how it has been applied to protect—or not protect—documents and other internal company information, depending on the circumstances.

The Privilege and Its Purpose
The self-critical analysis privilege, which has also been referred to by courts as the self-evaluative analysis privilege, the peer-review privilege, the deliberative privilege, and the self-evaluation privilege, is a qualified privilege designed to protect an entity's internal reviews and investigations from disclosure based on the policy of encouraging companies to assess their compliance with regulations and laws and make any necessary changes without fear of reprisal in any future litigation. Bredice v. Doctors Hospital, Inc., 50 F.R.D. 249 (D.D.C. 1970), is widely recognized to be the first case to identify the privilege.

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