Practice Tip: Putting a Product on Trial Without Compromising the Defense

Very often, a responsible product manufacturer will want to explore the efficacy or safety of one of its products in connection with placing it into the stream of commerce. Such a self-critical examination may occur during the research and development phase of manufacturing ' or even after the product is on the market. True candor and an unvarnished evaluation will be essential to reaching a useful conclusion. At the same time, however, wary of the ever-present threat of litigation, a prudent company does not want to create a treasure trove of discoverable materials that will have to be produced in response to even the most basic discovery requests.

Hence, the dilemma: A company will want to learn everything that can be known about the propensities of a product, but that good intention is juxtaposed against handing plaintiffs a complete dossier of who knew what, and when. From a business standpoint, the company must undertake a weighing analysis before it decides how much privileged information should be shared, or created, in connection with a self-evaluation. Critical to such a determination is an understanding of the law ' knowing exactly what is protected, and under what circumstances.

The Development and Current State of the Law Pertaining to the Self-Evaluative Privilege

The self-evaluative privilege ' also known as the self-critical subjective analysis privilege, the peer review privilege, and the self-examination privilege ' is governed by rule 501 of the Federal Rules of Evidence. Rule 501 requires courts to apply all privileges in accordance with “the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience.” Fed.R. Evid. 501. The rule is intentionally flexible and “reflects Congress's affirmative intention not to freeze the laws of privilege.” Victor E. Schwartz et al., Respirators to the Rescue: Why Tort Law Should Encourage, Not Deter, the Manufacture of Products That Make Us Safer, 33 Am. J. Trial Advoc. 13, 25 (2009) (internal citations omitted). In fact, “[i]ts purpose ' was to 'provide the courts with the flexibility to develop the rules on privilege on a case-by-case basis,' and to leave the door open to change.” Id. (quoting 120 Cong. Rec. 40,891 (1974) (statement of Rep. Hungate)).

In stark contrast to well-established evidentiary privileges, such as the attorney-client privilege and the work product doctrine, the self-evaluative privilege “remains largely undefined and has not generally been recognized by many authorities.” Lloyd v. Cessna Aircraft Co., 74 F.R.D. 518, 522 (E.D. Tenn. 1977); see also MacNamara v. City of New York, No. 04 Civ. 9612(KMK)(JCF), 2007 WL 755401, at *3 (S.D.N.Y. March 14, 2007) (“Neither the Supreme Court nor the Second Circuit has settled the question of whether the self-critical analysis privilege should be recognized as a matter of federal law.” (quoting Mitchell v. Fishbein, 227 F.R.D. 239, 251 (S.D.N.Y. 2005)). To the extent that the Supreme Court and the circuit courts of appeals have addressed the issue of the self-evaluative privilege, they “have neither definitively denied the existence of such a privilege, nor accepted it and defined its scope. Rather, when confronted with a claim of privilege, they have refused on narrow grounds to apply it to the facts before them.” Dowling v. Am. Haw. Cruises, Inc., 971 F.2d 423, 426 n.1 (9th Cir. 1992).

To the extent that lower courts have been willing to apply the privilege, they have required the party asserting the privilege to show that “the material satisfies at least three criteria: (1) the information must result from a critical self-analysis undertaken by the party seeking the protection; (2) the public must have a strong interest in preserving the free flow of the type of information sought; (3) the information must be of a type whose flow would be curtailed if discovery was [sic] allowed.” Reichhold Chems., Inc. v. Textron, Inc., 157 F.R.D. 522, 527 (N.D. Fla. 1994); accord Dowling, 971 F.2d at 425'26 (identifying these three criteria but not enumerating them). Furthermore, courts have recognized that documents should only be privileged if they were “prepared with the expectation that [they] would be kept confidential, and [have] in fact been kept confidential.” Dowling, 971 F.2d at 426. However, this confidentiality only extends to “subjective, evaluative materials” such as impressions and opinions and does not encompass “objective data” contained in the same reports. Roberts v. Carrier Corp., 107 F.R.D. 678, 684 (N.D. Ind. 1985). As such, providing objective material to someone conducting a subjective evaluation of the product does not transmogrify the data into a protected form. Finally, the self-evaluative privilege is qualified and can be pierced where the party against whom the privilege is asserted shows that extraordinary circumstances or special needs justify the disclosure of materials to which the privilege might otherwise attach. See Bredice v. Doctors Hosp., Inc., 50 F.R.D. 249, 251 (D.D.C. 1970).

The self-evaluative privilege was originally applied to protect information generated in the process of medical peer review. In Bredice v. Doctors Hospital, Inc., the court barred the discovery of records pertaining to medical staff meetings, which were intended to serve as confidential forums in which peers would offer constructive criticism of each other's clinical work. 50 F.R.D. at 249. Observing that “constructive professional criticism” would be chilled if doctors feared that their utterances in such meetings would be “used as a denunciation of a colleague's conduct in a malpractice suit,” the court concluded that the public interest in protecting the information from discovery outweighed any interest in disclosure. Id. at 250'51.

The self-evaluative privilege has been widely applied in the medical peer review context. See Reichhold, 157 F.R.D. at 525 (“[M]ost of the 50 states have statutorily protected medical peer reviews of patient care from discovery.”). Additionally, courts have employed this privilege in the context of “internal reviews of hiring policies, ' employment safety, environmental audits, libel, and securities litigation.” Theodore R. Lotchin, “Note, No Good Deed Goes Unpunished? Establishing a Self-Evaluative Privilege for Corporate Internal Investigations,” 46 Wm. & Mary L. Rev. 1137, 1162 (2004). Other commentators have also argued to extend the privilege “to NCAA investigative files, affirmative action plans, [] health care fraud and abuse investigations,” and corporate internal investigations. Id.

Courts have been somewhat more reluctant, however, to extend the privilege to the realm of product safety assessments and product liability. In Lloyd v. Cessna Aircraft Co., Cessna sought to bar deposition inquiry into a “top ten” list consisting of confidential information generated at meetings “designed to review, analyze, and evaluate operations for the continued self-improvement in the quality of [the company's] products.” 74 F.R.D. at 520. The Lloyd court recognized the existence of a qualified privilege for self-evaluative materials, but was careful to point out that the circumstances of the case before it did not warrant the “complete application” of the privilege. Id. at 521. The court distinguished Bredice, observing that general inquiry into the existence and purpose of documents did not implicate the privilege in the same way as a request for the production of the documents themselves. Id. at 521'22 (noting that “[w]ere the government seeking ' to obtain copies of the minutes ' of the actual discussions,” the self-evaluative privilege would likely attach after applying a balancing approach). While the Lloyd court seemed reluctant to extend the privilege to deposition inquiries in a product liability suit, it nevertheless limited the scope of such inquiry and explicitly prohibited the government from inquiring as to “any specific details concerning the discussions or events which may have occurred” at meetings in which “top ten” lists were discussed. Id. at 522. Permitting inquiry only into the existence and purpose of such documents, the court barred the government from seeking information regarding the documents' contents unless granted further permission by the court. Id.

The protection that the Lloyd court granted to voluntarily produced self-evaluative materials has been gradually eroded at both state and federal levels. In Dowling v. American Hawaii Cruises, Inc., the Ninth Circuit held that minutes of ship safety committee meetings conducted prior to the injury of a crewman were discoverable insofar as routine safety reviews “will rarely, if ever, be curtailed simply because they may be subject to discovery.” 971 F.2d at 426. The argument that companies will conduct safety reviews in order to avoid litigation even in the absence of a privilege, coupled with the fact that “a reputation for safety renders a product more marketable” (Id.), persuaded the court that the information sought for discovery was not “of a type whose flow would be curtailed if discovery were allowed.” Dowling, 971 F.2d at 426. Furthermore, the court ruled that safety inspections for the purposes of protecting employees were not intended to be kept confidential and, as such, held that the fourth criterion for the application of the privilege had not been satisfied. Although the Dowling decision involved an employer's liability for employee injuries rather than a product liability claim, the court's observation in dicta that a product's “reputation for safety” increases its marketability might bar the application of the privilege in product liability contexts. Id. Nevertheless, each jurisdiction remains free to determine the contours of the privilege according to its own evaluation of common law principles. As such, it remains to be seen whether this view will gain widespread acceptance.

The majority of cases discussing the application of the self-evaluative privilege in product liability claims have involved the protection of mandatorily produced safety reports under the Consumer Product Safety Act (“CPSA”). Courts recognizing the privilege have almost uniformly held that the privilege will attach where the material sought for discovery was produced pursuant to a government mandate. See Shipes v. BIC Corp., 154 F.R.D. 301 (M.D. Ga. 1994) (holding that a privilege for self-evaluative analysis in the product liability context was consistent with the purpose of such a privilege in the realm of medical peer review and that the privilege attaches where the material sought for discovery was a mandatory government report); Roberts, 107 F.R.D. at 678 (holding that self-evaluative materials produced for the purpose of improving a product are not privileged where the creation of those materials was not mandated by law); Ashley v. Uniden Corp. of America, No. SA-84-CA-2383,1986 U.S. Dist. LEXIS 22409 (W.D. Tex. July 23, 1986) (holding that defendant's efforts to comply with Section 15 of the CPSA were not discoverable). Thus, a second rule for the application of the self-evaluative privilege has arisen out of these cases providing that self-evaluative materials will be privileged where they were prepared for mandatory government reports, subject to the limitation that the privilege extends only to subjective, evaluative materials, and does not extend to objective data in the same reports. Roberts, 107 F.R.D. at 684. In such instances, discovery will be denied “where the policy favoring exclusion has clearly outweighed plaintiff's need.” Id.

Recommendations to Clients Seeking to Assert the
Self-Evaluative Privilege

As noted above, the self-evaluative privilege will only attach in situations where: 1) the information sought for discovery results from a critical self analysis undertaken by the party asserting the privilege; 2) there is a strong public interest in preserving the free flow of the type of information sought; 3) the information is of a type whose flow would be curtailed if discovery was permitted; and 4) the party asserting the privilege has manifested and followed through on an intention to keep the material confidential. Dowling, 971 F.2d at 425'26. Companies seeking to avail themselves of the self-evaluative privilege are able to control only two of these factors ' the first and the fourth. Donald P. Vandegrift, “The Privilege of Self-Critical Analysis: A Survey of the Law,” 60 Alb. L. Rev. 171, 187 (1996). In order to fulfill the first factor, companies should ensure that the documents they wish to protect are truly self-critical and not merely collections of unfavorable statistics. Therefore, companies should always make sure to record impressions and opinions in the documents that they seek to shield from discovery. See Id. Characterization of a document as “self evaluative” will be more persuasive to the courts “if the document is both aptly titled and composed of sections clearly delineated as subjective analysis or opinion.” Id. (citing Sheppard v. Consol. Edison Co., 893 F. Supp. 6, 7 (E.D.N.Y. 1995) (holding that evaluative material in studies would be protected from disclosure while underlying facts would not)). While titles and labels indicating that a study contains a subjective opinion will not suffice to transform raw data into subjective impressions subject to the privilege, nevertheless such labels will “at least lay the foundation for a privilege argument.” Id.

As to the fourth criterion ' confidentiality ' it is important for companies to mark documents clearly as confidential and to maintain this confidentiality by limiting the documents' circulation. “Wide distribution of a company's candid self-criticisms will undoubtedly undercut a confidentiality argument. Conversely, restricting distribution of self-critical reports to individuals on a 'need to know' basis should bolster a privilege argument.” Id. at 187'88.

It is important to recall that the availability of the privilege will be subject to not only the two controllable factors discussed above, but also the uncontrollable second and third factors relating to the public's interest in the free flow of information. While these latter factors are largely uncontrollable, the closer the relationship between the self-evaluative material and the ordinary course of a company's business, the less likely courts are to hold that the self-evaluative privilege attaches ' an observation that flows from the mere fact that information generated in the regular course of business is unlikely to be curtailed by the denial of privilege. See, e.g., Roberts 107 F.R.D. at 684 (holding that self-evaluative materials produced for the purpose of improving a product are not privileged where the creation of those materials was not mandated by law). Furthermore, the self-evaluative privilege may be pierced where the party seeking to overcome the privilege asserts a special need for the information. Bredice, 50 F.R.D. at 251.

Alternate Avenues for Protecting Self-Evaluative Materials

The above analysis, and relevant case law, indicates that the self-evaluative privilege has been applied sparingly in the product liability context. Moreover, the manner of its application has provided companies with little guidance as to how to make self-evaluations discovery-proof. There are, however, alternative and more traditional means of safeguarding the self-evaluative privilege that may offer greater certainty of protection.

The Work Product Doctrine

Self-evaluative documents that are produced with an eye toward litigation may be protected not only by the self-evaluative privilege, but also by the work product doctrine recognized in Federal Rule of Civil Procedure 26(b)(3). Under this rule, a party may obtain discovery of documents “prepared in anticipation of litigation” only upon a showing that the party seeking discovery “has substantial need of the materials” in the preparation of the party's case and that the party is unable “without undue hardship” to obtain the “substantial equivalent [of the materials] by other means.” Fed. R. Civ. Proc. 26(b)(3). It is generally the case that “[i]f ' a business entity in the ordinary course of business conducts an investigation for its own purposes, the resulting investigative report is [ordinarily] producible in [subsequent] civil pretrial discovery.” Janicker v. George Washington Univ., 94 F.R.D. 648, 650 (D.D.C. 1982). However, one jurisdiction has held that the work product doctrine will nevertheless protect self-evaluative documents where “manufacturers study reports of accidents involving their products for the purpose of ascertaining if preventative measures can be taken to avoid future accidents.” Bradley v. Melroe Co., 141 F.R.D. 1, 3 (D.D.C. 1992). In Bradley, the court held that “[t]he work product privilege ' protects from discovery 'material prepared by or for any litigation or trial so long as it was prepared by or for a party to the subsequent litigation.'” Id. at 2 (emphasis in original). The Bradley court's expansive reading of the work product doctrine is in fact so broad as to bar disclosure of investigations into product defects that are discovered prior to the onset of litigation. While it remains the case, even with respect to the work product doctrine, that only subjective impressions (and not facts) are subject to the privilege, the Bradley court's treatment of this issue nevertheless presents the work product doctrine as an attractive alternative to the less certain protection granted by the self-evaluative privilege.

Federal Rule of Evidence 407

Rule 407 provides that “[w]hen, after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product's design, or a need for a warning or instruction.” Fed.R. Evid.. 407 (emphasis added). The plain language of the rule provides guidance for companies seeking to shield self-evaluative materials from disclosure at trial. In order to avail itself of the protection afforded by Rule 407, a company should ensure that the self-evaluative materials are produced subsequent to an injury. See Vandegrif at 189'90. However, it is important to note that Rule 407 is not a rule of absolute privilege. Id. As such, Rule 407 bars the admissibility of self-critical materials at trial, but it will not bar the disclosure of such materials during the discovery process. Id. at 190.

The Attorney-Client Privilege

The attorney-client privilege protects confidential disclosures between a client and counsel. Id. at 190'91. In contrast to the self-evaluative privilege, the protection afforded to attorney-client communications cannot be pierced by a showing of exceptional need. Id. at 191. Like the self-evaluative privilege, however, the attorney-client privilege protects only communications and not the facts underlying communication. Id. As such, self-evaluative materials may be privileged when prepared for the purpose of obtaining legal advice from counsel, but it is impossible to shield facts from discovery simply by including them in a document that is transmitted to one's attorney. Id. at 192.

Conclusion

Notwithstanding the wealth of product liability litigation ' and reported decisions related to a panoply of discovery issues ' there is a surprising dearth of guidance about how a company can best protect the results of a self-evaluative analysis. Moreover, given the varying approaches and outcomes employed by different courts, no result can be predicted with absolute certainty. The only constant, or best practice, is that a company may develop a comprehensive plan to best position itself from having to produce material it would not want subject to discovery. Failure to do so could provide opposing counsel with a road map of discovery and trial themes to be exploited against the manufacturer.

Peter A. Antonucci is a Shareholder in the New York office of Greenberg Traurig, where he specializes in product liability, class actions and consumer fraud. The author gratefully acknowledges the invaluable assistance of Caroline K. Elkin, a Summer Associate at the firm.

Very often, a responsible product manufacturer will want to explore the efficacy or safety of one of its products in connection with placing it into the stream of commerce. Such a self-critical examination may occur during the research and development phase of manufacturing ' or even after the product is on the market. True candor and an unvarnished evaluation will be essential to reaching a useful conclusion. At the same time, however, wary of the ever-present threat of litigation, a prudent company does not want to create a treasure trove of discoverable materials that will have to be produced in response to even the most basic discovery requests.

Hence, the dilemma: A company will want to learn everything that can be known about the propensities of a product, but that good intention is juxtaposed against handing plaintiffs a complete dossier of who knew what, and when. From a business standpoint, the company must undertake a weighing analysis before it decides how much privileged information should be shared, or created, in connection with a self-evaluation. Critical to such a determination is an understanding of the law ' knowing exactly what is protected, and under what circumstances.

The Development and Current State of the Law Pertaining to the Self-Evaluative Privilege

The self-evaluative privilege ' also known as the self-critical subjective analysis privilege, the peer review privilege, and the self-examination privilege ' is governed by rule 501 of the Federal Rules of Evidence. Rule 501 requires courts to apply all privileges in accordance with “the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience.” Fed.R. Evid. 501. The rule is intentionally flexible and “reflects Congress's affirmative intention not to freeze the laws of privilege.” Victor E. Schwartz et al., Respirators to the Rescue: Why Tort Law Should Encourage, Not Deter, the Manufacture of Products That Make Us Safer, 33 Am. J. Trial Advoc. 13, 25 (2009) (internal citations omitted). In fact, “[i]ts purpose ' was to 'provide the courts with the flexibility to develop the rules on privilege on a case-by-case basis,' and to leave the door open to change.” Id. (quoting 120 Cong. Rec. 40,891 (1974) (statement of Rep. Hungate)).

In stark contrast to well-established evidentiary privileges, such as the attorney-client privilege and the work product doctrine, the self-evaluative privilege “remains largely undefined and has not generally been recognized by many authorities.” Lloyd v. Cessna Aircraft Co. , 74 F.R.D. 518, 522 (E.D. Tenn. 1977); see also MacNamara v. City of New York, No. 04 Civ. 9612(KMK)(JCF), 2007 WL 755401, at *3 (S.D.N.Y. March 14, 2007) (“Neither the Supreme Court nor the Second Circuit has settled the question of whether the self-critical analysis privilege should be recognized as a matter of federal law.” (quoting Mitchell v. Fishbein , 227 F.R.D. 239, 251 (S.D.N.Y. 2005)). To the extent that the Supreme Court and the circuit courts of appeals have addressed the issue of the self-evaluative privilege, they “have neither definitively denied the existence of such a privilege, nor accepted it and defined its scope. Rather, when confronted with a claim of privilege, they have refused on narrow grounds to apply it to the facts before them.” Dowling v. Am. Haw. Cruises, Inc. , 971 F.2d 423, 426 n.1 (9th Cir. 1992).

To the extent that lower courts have been willing to apply the privilege, they have required the party asserting the privilege to show that “the material satisfies at least three criteria: (1) the information must result from a critical self-analysis undertaken by the party seeking the protection; (2) the public must have a strong interest in preserving the free flow of the type of information sought; (3) the information must be of a type whose flow would be curtailed if discovery was [sic] allowed.” Reichhold Chems., Inc. v. Textron, Inc. , 157 F.R.D. 522, 527 (N.D. Fla. 1994); accord Dowling , 971 F.2d at 425'26 (identifying these three criteria but not enumerating them). Furthermore, courts have recognized that documents should only be privileged if they were “prepared with the expectation that [they] would be kept confidential, and [have] in fact been kept confidential.” Dowling, 971 F.2d at 426. However, this confidentiality only extends to “subjective, evaluative materials” such as impressions and opinions and does not encompass “objective data” contained in the same reports. Roberts v. Carrier Corp. , 107 F.R.D. 678, 684 (N.D. Ind. 1985). As such, providing objective material to someone conducting a subjective evaluation of the product does not transmogrify the data into a protected form. Finally, the self-evaluative privilege is qualified and can be pierced where the party against whom the privilege is asserted shows that extraordinary circumstances or special needs justify the disclosure of materials to which the privilege might otherwise attach. See Bredice v. Doctors Hosp., Inc. , 50 F.R.D. 249, 251 (D.D.C. 1970).

The self-evaluative privilege was originally applied to protect information generated in the process of medical peer review. In Bredice v. Doctors Hospital, Inc., the court barred the discovery of records pertaining to medical staff meetings, which were intended to serve as confidential forums in which peers would offer constructive criticism of each other's clinical work. 50 F.R.D. at 249. Observing that “constructive professional criticism” would be chilled if doctors feared that their utterances in such meetings would be “used as a denunciation of a colleague's conduct in a malpractice suit,” the court concluded that the public interest in protecting the information from discovery outweighed any interest in disclosure. Id. at 250'51.

The self-evaluative privilege has been widely applied in the medical peer review context. See Reichhold, 157 F.R.D. at 525 (“[M]ost of the 50 states have statutorily protected medical peer reviews of patient care from discovery.”). Additionally, courts have employed this privilege in the context of “internal reviews of hiring policies, ' employment safety, environmental audits, libel, and securities litigation.” Theodore R. Lotchin, “Note, No Good Deed Goes Unpunished? Establishing a Self-Evaluative Privilege for Corporate Internal Investigations,” 46 Wm. & Mary L. Rev. 1137, 1162 (2004). Other commentators have also argued to extend the privilege “to NCAA investigative files, affirmative action plans, [] health care fraud and abuse investigations,” and corporate internal investigations. Id.

Courts have been somewhat more reluctant, however, to extend the privilege to the realm of product safety assessments and product liability. In Lloyd v. Cessna Aircraft Co., Cessna sought to bar deposition inquiry into a “top ten” list consisting of confidential information generated at meetings “designed to review, analyze, and evaluate operations for the continued self-improvement in the quality of [the company's] products.” 74 F.R.D. at 520. The Lloyd court recognized the existence of a qualified privilege for self-evaluative materials, but was careful to point out that the circumstances of the case before it did not warrant the “complete application” of the privilege. Id. at 521. The court distinguished Bredice, observing that general inquiry into the existence and purpose of documents did not implicate the privilege in the same way as a request for the production of the documents themselves. Id. at 521'22 (noting that “[w]ere the government seeking ' to obtain copies of the minutes ' of the actual discussions,” the self-evaluative privilege would likely attach after applying a balancing approach). While the Lloyd court seemed reluctant to extend the privilege to deposition inquiries in a product liability suit, it nevertheless limited the scope of such inquiry and explicitly prohibited the government from inquiring as to “any specific details concerning the discussions or events which may have occurred” at meetings in which “top ten” lists were discussed. Id. at 522. Permitting inquiry only into the existence and purpose of such documents, the court barred the government from seeking information regarding the documents' contents unless granted further permission by the court. Id.

The protection that the Lloyd court granted to voluntarily produced self-evaluative materials has been gradually eroded at both state and federal levels. In Dowling v. American Hawaii Cruises, Inc., the Ninth Circuit held that minutes of ship safety committee meetings conducted prior to the injury of a crewman were discoverable insofar as routine safety reviews “will rarely, if ever, be curtailed simply because they may be subject to discovery.” 971 F.2d at 426. The argument that companies will conduct safety reviews in order to avoid litigation even in the absence of a privilege, coupled with the fact that “a reputation for safety renders a product more marketable” (Id.), persuaded the court that the information sought for discovery was not “of a type whose flow would be curtailed if discovery were allowed.” Dowling, 971 F.2d at 426. Furthermore, the court ruled that safety inspections for the purposes of protecting employees were not intended to be kept confidential and, as such, held that the fourth criterion for the application of the privilege had not been satisfied. Although the Dowling decision involved an employer's liability for employee injuries rather than a product liability claim, the court's observation in dicta that a product's “reputation for safety” increases its marketability might bar the application of the privilege in product liability contexts. Id. Nevertheless, each jurisdiction remains free to determine the contours of the privilege according to its own evaluation of common law principles. As such, it remains to be seen whether this view will gain widespread acceptance.

The majority of cases discussing the application of the self-evaluative privilege in product liability claims have involved the protection of mandatorily produced safety reports under the Consumer Product Safety Act (“CPSA”). Courts recognizing the privilege have almost uniformly held that the privilege will attach where the material sought for discovery was produced pursuant to a government mandate. See Shipes v. BIC Corp. , 154 F.R.D. 301 (M.D. Ga. 1994) (holding that a privilege for self-evaluative analysis in the product liability context was consistent with the purpose of such a privilege in the realm of medical peer review and that the privilege attaches where the material sought for discovery was a mandatory government report); Roberts, 107 F.R.D. at 678 (holding that self-evaluative materials produced for the purpose of improving a product are not privileged where the creation of those materials was not mandated by law); Ashley v. Uniden Corp. of America, No. SA-84-CA-2383,1986 U.S. Dist. LEXIS 22409 (W.D. Tex. July 23, 1986) (holding that defendant's efforts to comply with Section 15 of the CPSA were not discoverable). Thus, a second rule for the application of the self-evaluative privilege has arisen out of these cases providing that self-evaluative materials will be privileged where they were prepared for mandatory government reports, subject to the limitation that the privilege extends only to subjective, evaluative materials, and does not extend to objective data in the same reports. Roberts, 107 F.R.D. at 684. In such instances, discovery will be denied “where the policy favoring exclusion has clearly outweighed plaintiff's need.” Id.

Recommendations to Clients Seeking to Assert the
Self-Evaluative Privilege

As noted above, the self-evaluative privilege will only attach in situations where: 1) the information sought for discovery results from a critical self analysis undertaken by the party asserting the privilege; 2) there is a strong public interest in preserving the free flow of the type of information sought; 3) the information is of a type whose flow would be curtailed if discovery was permitted; and 4) the party asserting the privilege has manifested and followed through on an intention to keep the material confidential. Dowling, 971 F.2d at 425'26. Companies seeking to avail themselves of the self-evaluative privilege are able to control only two of these factors ' the first and the fourth. Donald P. Vandegrift, “The Privilege of Self-Critical Analysis: A Survey of the Law,” 60 Alb. L. Rev. 171, 187 (1996). In order to fulfill the first factor, companies should ensure that the documents they wish to protect are truly self-critical and not merely collections of unfavorable statistics. Therefore, companies should always make sure to record impressions and opinions in the documents that they seek to shield from discovery. See Id. Characterization of a document as “self evaluative” will be more persuasive to the courts “if the document is both aptly titled and composed of sections clearly delineated as subjective analysis or opinion.” Id . ( citing Sheppard v. Consol. Edison Co. , 893 F. Supp. 6, 7 (E.D.N.Y. 1995) (holding that evaluative material in studies would be protected from disclosure while underlying facts would not)). While titles and labels indicating that a study contains a subjective opinion will not suffice to transform raw data into subjective impressions subject to the privilege, nevertheless such labels will “at least lay the foundation for a privilege argument.” Id.

As to the fourth criterion ' confidentiality ' it is important for companies to mark documents clearly as confidential and to maintain this confidentiality by limiting the documents' circulation. “Wide distribution of a company's candid self-criticisms will undoubtedly undercut a confidentiality argument. Conversely, restricting distribution of self-critical reports to individuals on a 'need to know' basis should bolster a privilege argument.” Id. at 187'88.

It is important to recall that the availability of the privilege will be subject to not only the two controllable factors discussed above, but also the uncontrollable second and third factors relating to the public's interest in the free flow of information. While these latter factors are largely uncontrollable, the closer the relationship between the self-evaluative material and the ordinary course of a company's business, the less likely courts are to hold that the self-evaluative privilege attaches ' an observation that flows from the mere fact that information generated in the regular course of business is unlikely to be curtailed by the denial of privilege. See, e.g., Roberts 107 F.R.D. at 684 (holding that self-evaluative materials produced for the purpose of improving a product are not privileged where the creation of those materials was not mandated by law). Furthermore, the self-evaluative privilege may be pierced where the party seeking to overcome the privilege asserts a special need for the information. Bredice, 50 F.R.D. at 251.

Alternate Avenues for Protecting Self-Evaluative Materials

The above analysis, and relevant case law, indicates that the self-evaluative privilege has been applied sparingly in the product liability context. Moreover, the manner of its application has provided companies with little guidance as to how to make self-evaluations discovery-proof. There are, however, alternative and more traditional means of safeguarding the self-evaluative privilege that may offer greater certainty of protection.

The Work Product Doctrine

Self-evaluative documents that are produced with an eye toward litigation may be protected not only by the self-evaluative privilege, but also by the work product doctrine recognized in Federal Rule of Civil Procedure 26(b)(3). Under this rule, a party may obtain discovery of documents “prepared in anticipation of litigation” only upon a showing that the party seeking discovery “has substantial need of the materials” in the preparation of the party's case and that the party is unable “without undue hardship” to obtain the “substantial equivalent [of the materials] by other means.” Fed. R. Civ. Proc. 26(b)(3). It is generally the case that “[i]f ' a business entity in the ordinary course of business conducts an investigation for its own purposes, the resulting investigative report is [ordinarily] producible in [subsequent] civil pretrial discovery.” Janicker v. George Washington Univ. , 94 F.R.D. 648, 650 (D.D.C. 1982). However, one jurisdiction has held that the work product doctrine will nevertheless protect self-evaluative documents where “manufacturers study reports of accidents involving their products for the purpose of ascertaining if preventative measures can be taken to avoid future accidents.” Bradley v. Melroe Co. , 141 F.R.D. 1, 3 (D.D.C. 1992). In Bradley, the court held that “[t]he work product privilege ' protects from discovery 'material prepared by or for any litigation or trial so long as it was prepared by or for a party to the subsequent litigation.'” Id. at 2 (emphasis in original). The Bradley court's expansive reading of the work product doctrine is in fact so broad as to bar disclosure of investigations into product defects that are discovered prior to the onset of litigation. While it remains the case, even with respect to the work product doctrine, that only subjective impressions (and not facts) are subject to the privilege, the Bradley court's treatment of this issue nevertheless presents the work product doctrine as an attractive alternative to the less certain protection granted by the self-evaluative privilege.

Federal Rule of Evidence 407

Rule 407 provides that “[w]hen, after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product's design, or a need for a warning or instruction.” Fed.R. Evid.. 407 (emphasis added). The plain language of the rule provides guidance for companies seeking to shield self-evaluative materials from disclosure at trial. In order to avail itself of the protection afforded by Rule 407, a company should ensure that the self-evaluative materials are produced subsequent to an injury. See Vandegrif at 189'90. However, it is important to note that Rule 407 is not a rule of absolute privilege. Id. As such, Rule 407 bars the admissibility of self-critical materials at trial, but it will not bar the disclosure of such materials during the discovery process. Id. at 190.

The Attorney-Client Privilege

The attorney-client privilege protects confidential disclosures between a client and counsel. Id. at 190'91. In contrast to the self-evaluative privilege, the protection afforded to attorney-client communications cannot be pierced by a showing of exceptional need. Id. at 191. Like the self-evaluative privilege, however, the attorney-client privilege protects only communications and not the facts underlying communication. Id. As such, self-evaluative materials may be privileged when prepared for the purpose of obtaining legal advice from counsel, but it is impossible to shield facts from discovery simply by including them in a document that is transmitted to one's attorney. Id. at 192.

Conclusion

Notwithstanding the wealth of product liability litigation ' and reported decisions related to a panoply of discovery issues ' there is a surprising dearth of guidance about how a company can best protect the results of a self-evaluative analysis. Moreover, given the varying approaches and outcomes employed by different courts, no result can be predicted with absolute certainty. The only constant, or best practice, is that a company may develop a comprehensive plan to best position itself from having to produce material it would not want subject to discovery. Failure to do so could provide opposing counsel with a road map of discovery and trial themes to be exploited against the manufacturer.

Peter A. Antonucci is a Shareholder in the New York office of Greenberg Traurig, where he specializes in product liability, class actions and consumer fraud. The author gratefully acknowledges the invaluable assistance of Caroline K. Elkin, a Summer Associate at the firm.