The Self-Critical Analysis Privilege: Check in With an Attorney Prior to Turning Over Post-Incident Documentation

By Camille N. Johnson and Judith D. Wolferts

After a catastrophic incident, food producers often conduct independent post-incident investigations. While these independent investigations help prevent future incidents and lay the stage for defenses at trial, they could potentially uncover sensitive information about the company’s fault. It is no surprise that opposing counsel will often attempt to obtain the post- incident investigation materials through discovery requests. How should your company respond?

Begin by speaking with your attorney. Some courts recognize a “self-critical analysis privilege” which protects a party from having to disclose post-incident investigation and analysis. See, e.g., Dowling v. American Hawaii Cruises, Inc., 971 F.2d 423 (9th Cir. 1992). These courts will typically require your company to prove three things:

1. The information your company wants to protect resulted from critical self-analysis.
2. The public has a strong interest in preserving the free flow of such information.

3. Disclosure would threaten the flow of such information.

For example, a company seeking to prevent disclosure of an internal audit of an incident that resulted in the firing of an employee should argue that the information resulted from critical self-analysis, the public benefited from the internal monitoring of safe practices, and disclosure would prevent the company from conducting similar audits in the future.

It is worth noting that not every jurisdiction recognizes the privilege, and a few jurisdictions limit the privilege to opinions or recommendations. See, e.g., Granger v. Nat’l R.R. Passenger Corp., 116 F.R.D. 507, 510 (E.D. 1987). However, your attorney may have other tools at his or her disposal. See Fed. R. Evid. 401, 403, 407. In short, a brief conversation with your attorney about the disclosure of post-incident investigation may prevent the opposing party from obtaining harmful information obtained after the incident.

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Categories: Litigation