Discovery requests in product liability litigation matters are often a costly and time-consuming black hole. They consume precious resources manufacturers and distributors could use to build up their businesses and, worse, often force exposure of sensitive internal communications and materials. What to do? Well, a seldom-explored legal tool to avoid the expenses and resources demanded by such requests, protecting certain documents from discovery, is the self-critical analysis, or self-evaluative, privilege. This article traces the history of the privilege and the current law in the Seventh Circuit.
The self-critical analysis privilege provides qualified protection from discovery for certain evaluative analyses that take a critical look at the product or process in question. This privilege can apply to a variety of situations that companies dealing with products confront every day, including post-accident investigations, anonymous employee submissions suggesting how employers can improve, or reviews from a designated committee. For instance, a district court applied the privilege to “Accident Analysis” and “Committee Recommendations” in an Amtrak investigation committee report following an on-the-job accident.1 Another district court applied the privilege to in-house investigative files, apart from the factual data of the accident’s date, place, event information, and name and address of the reporter.2
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