The Confidentiality of Pre-Suit Investigations

In the realm of product design and manufacture, a product is conceptualized, developed, and ultimately transformed into a final, tangible product for user consumption. But what if a company wants to re-conceptualize and re-develop its product into a newer, better final product—"Product 2.0"? While improvement should be celebrated, in the legal realm companies are often severely scrutinized for improvement efforts, particularly when Product 2.0 is created because Product 1.0 may have caused an injury. In most states, although evidentiary rules protect improvement efforts from disclosure, the confidentiality that companies expect to attach to improvement efforts for discovery often does not. But shouldn't companies be afforded that protection? Enter the self-critical analysis privilege.