June 13, 2017

US - The Self-Critical Analysis Privilege: Not A Sure Thing

With the recent Galaxy Note and Prius recalls in the headlines, we can be sure that legal claims are forthcoming. As Samsung and Toyota learned of the issues, they almost certainly tested their products and evaluated their procedures to assess the scope and cause of these issues, as well as what they could have done to avoid them. Will these self-evaluative materials be discoverable in future litigation?

The privilege protects an organization or individual from the Hobson's choice of aggressively investigating accidents or possible regulatory violations, ascertaining the causes and results, and correcting any violations or dangerous conditions, but thereby creating a self-incriminating record that may be evidence of liability, or deliberately avoiding making a record on the subject (and possibly leaving the public exposed to danger) in order to lessen the risk of civil liability.

The self-critical analysis privilege, also called the self-evaluation privilege or the self-evaluative privilege, may be available to these companies seeking to protect records reflecting confidential internal investigations and self-evaluative analyses.1 The availability of this privilege in large part depends on what law applies, as jurisdictions are split regarding whether the privilege exists, and if so, in what contexts. There are even splits within jurisdictions as lower courts await conclusive decisions on the issue from higher courts or legislatures.2

Courts that recognize the privilege explain that "[t]he rationale for the doctrine is that such self-critical evaluation fosters the compelling public interest in observance of the law."3 These courts liken the policy reasons for the privilege to those behind Federal Rule of Evidence 407, which prevents parties from discovering evidence of subsequent remedial measures.4