Most products liability defense lawyers are thoroughly familiar with evidentiary protections offered to post-incident repairs or improvements. Likewise, counsel are well-versed in the elements of the attorney-client privilege and work-product immunity and the discovery and evidentiary limits those doctrines impose on their adversaries. Less well-known is the so-called “self-critical analysis” privilege, which should be considered whenever a new defense engagement is undertaken.
The “self-critical analysis” privilege protects the fruits of a business entity’s analysis of the causes of an unforeseen event for purposes of prevention of similar incidents in the future. The primary public policy reason for the privilege is to encourage candid and forthright reviews to protect the public without fear that the results will be used against the entity. A key feature of this privilege is that the analysis does not necessarily have to be the work, or at the direction, of counsel.
Massachusetts judges have repeatedly rejected the privilege. As recently as 2006, one prominent judge wrote that Massachusetts does not recognize such a privilege. See Rhodes v. AIG Domestic Claims, Inc., No. 05-1360-BLS2, 2006 WL 307911, at *4 (Mass. Super. Jan. 27, 2006) (Gants, J.). However, in June of this year, a Massachusetts federal court judge ruled otherwise. See In re: Block Island Fishing, Inc., No.16-10043-ADB (D. Mass Jun. 4, 2018).
In re: Block Island Fishing, Inc., arose out of a collision at sea between a natural gas tanker and a lobster boat. In the week after the accident, the tanker company conducted a confidential internal inquiry to determine the cause of the accident and to identify changes in company practices to prevent such incidents in the future. Noteworthy is the fact that the tanker company’s counsel apparently was not involved. The inquiry resulted in the issuance of a report containing an analysis of the accident and recommendations as to how future accidents might be avoided.
Five months after the accident, litigation ensued. During discovery, the lobster boat owner demanded a copy of the report and sought to take the Rule 30(b)(6) deposition of the tanker company. One of the topics for the deposition included the report and its conclusions. The tanker company moved for a protective order to prevent production of the report and questioning on the related deposition topic, saying that both were protected by the “self-critical analysis” privilege. United States District Judge Allison D. Burroughs agreed.
In a thoughtful eight-page opinion, Judge Burroughs laid out the elements of the privilege and concluded that the actions of the tanker company following the collision fit squarely within it. The judge observed that the purpose of the post-collision inquiry was to identify the cause and to make recommendations as to how future collisions might be avoided. She also mentioned that such an inquiry might have been required by an international treaty, although she did not rule that such a requirement was required in order for the privilege to apply. She concluded that application of the privilege served the salutary purpose of encouraging thoroughness and candor. Conspicuously absent from the decision is any mention of attorney involvement in the preparation of the report, and the tanker company did not raise the attorney-client privilege or work-product immunity in support of its position.
The decision was not a complete win for the tanker company. Judge Burroughs ordered the tanker company to make a showing that it had taken steps to keep the report confidential. Additionally, while the analyses and conclusions of the report were protected by the privilege, the judge ruled that the tanker company was obliged to disclose all facts uncovered and materials relied on in the course of the investigation plus the factual portion of the report. Furthermore, while the protective order prevented Rule 30(b)(6) deposition testimony on the topic of the report’s recommendations, it allowed the lobster boat owner to depose other employees of the tanker company, such as the tanker’s crew members, regarding their personal opinions of what caused the accident.
Judge Burroughs’ opinion is an extremely helpful articulation of the “self-critical analysis” privilege. However, this decision is only a trial court opinion and has not yet been tested by the Court of Appeals for the First Circuit. Likewise, the highest state courts of Massachusetts have yet to weigh in on the subject. Until that happens, there remains a risk that reports such as the one at issue will not be protected. This decision also highlights the importance of involving counsel in the process of any post-incident investigation to ensure an extra level of protection as to what comes of it.