Dowling v. American Hawaii Cruises, Inc.

133 F.R.D. 150, 1991 A.M.C. 51, 1990 U.S. Dist. LEXIS 16541, 1990 WL 190532
CourtDistrict Court, D. Hawaii
DecidedJuly 27, 1990
DocketCiv. No. 89-00652 ACK
StatusPublished
Cited by1 cases

This text of 133 F.R.D. 150 (Dowling v. American Hawaii Cruises, Inc.) is published on Counsel Stack Legal Research, covering District Court, D. Hawaii primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dowling v. American Hawaii Cruises, Inc., 133 F.R.D. 150, 1991 A.M.C. 51, 1990 U.S. Dist. LEXIS 16541, 1990 WL 190532 (D. Haw. 1990).

Opinion

ORDER AFFIRMING MAGISTRATE’S ORDER DENYING PLAINTIFF’S MOTION TO COMPEL DISCOVERY OF MEETING MINUTES

KAY, District Judge.

I. BACKGROUND

Plaintiff Kevin Dowling was First Mate aboard the S.S. Independence, a passenger cruise ship owned and operated by the three Defendants: American Hawaii Cruises, Inc., American Global Lines, Inc., and American Hawaii Cruises Joint Venture. On December 1, 1988, while supervising mooring operations, Plaintiff slipped and fell to the metal deck of the vessel, seriously injuring his back. Plaintiff alleges that his fall was caused by oil on the deck leaking from a defective “roller chock,” a piece of deck machinery. Plaintiff further alleges that this roller chock had been leaking intermittently for some fourteen months prior to the accident, and that Defendants through their agents were aware of the defect.

On August 22, 1989, Plaintiff filed suit against Defendants under the Jones Act, 46 U.S.C.App. § 688, claiming negligence and seeking general, special, and punitive damages for his injury. Since then, Plaintiff has been seeking discovery from Defendants concerning his accident. A safety committee comprised of various representatives of the S.S. Independence’s crew held monthly meetings to identify potential safety problems aboard ship, and to take steps to correct any identified problems. Pursuant to a request for production of documents, Plaintiff sought the minutes of these monthly safety committee meetings for a period of approximately two years prior to his accident.

[151]*151Initially, Defendants refused to comply with Plaintiff’s request, claiming that the safety committee minutes were protected by the “self-evaluative privilege.” However, following a meeting with Plaintiff’s attorneys, Defendants provided Plaintiff with heavily redacted versions of the minutes from four committee meetings in 1987. Defendants claimed that these redacted minutes—essentially one brief phrase relating to the leaking roller chock from each of the four meetings—constitute the only items of relevance to Plaintiff’s claim. Subsequently, on February 28, 1990, Plaintiff filed a motion to compel Defendants to answer interrogatories, which both the Magistrate and the parties have treated as a motion to compel production of the complete safety committee minutes.

On March 29, 1990, Magistrate Tokairin held a hearing on Plaintiff’s motion, and subsequently reviewed in camera the safety committee minutes. On May 4, 1990, the Magistrate issued an Order Denying Plaintiffs Motion To Compel S.S. Independence Minutes Of Safety Meetings. The Magistrate stated that a privilege of critical self-analysis was applicable to shield the safety minutes from discovery. Plaintiff now appeals from that order.

II. JURISDICTION

Because this matter has arisen under a claim filed pursuant to 46 U.S.C.App. § 688 and 28 U.S.C. § 1333, which vests exclusive jurisdiction for general maritime and admiralty claims in the federal district courts, this Court has federal question jurisdiction under 28 U.S.C. § 1331.

III. STANDARD OF REVIEW

“A United States District Judge shall consider the appeal and shall set aside any portion of the magistrate’s order found to be clearly erroneous or contrary to law.” Rules of the United States District Court for the District of Hawaii, Rule 404-1.

IV. DISCUSSION

A. Self-critical analysis privilege— Historical Background

The privilege of self-critical analysis under which the Magistrate shielded the safety committee minutes from discovery is a recent development. The privilege was first recognized in Bredice v. Doctors Hospital Inc., 50 F.R.D. 249 (D.D.C.1970), aff'd, 479 F.2d 920 (D.C.Cir.1973). In Bredice, the court held that the minutes of hospital staff meetings were properly shielded from discovery by the plaintiff in a malpractice suit against the hospital. The hospital conducted these staff meetings in order to evaluate its procedures and improve patient care. The Bredice court noted that these meetings required hospital staff members to give their candid assessments of various hospital procedures, including shortcomings in the clinical work of its members. Id. at 250. The court also noted that the hospital staff held its discussions with the understanding that they would remain confidential, and that “[t]o subject these discussions and deliberations to the discovery process, without a showing of exceptional necessity, would result in terminating such deliberations.” Id.

The Bredice court concluded:

There is an overwhelming public interest in having those staff meetings held on a confidential basis so that the flow of ideas and advice can continue unimpeded____ These committee meetings, being retrospective with the purpose of self-improvement, are entitled to a qualified privilege on the basis of the overwhelming public interest.

Id. at 251.

Since Bredice, there have been a few similar cases involving hospital reports where the court has ruled that the report be shielded from discovery. See Gillman v. United States, 53 F.R.D. 316 (S.D.N.Y.1971) (report of hospital inquiry into a patient suicide protected from discovery). But most of the cases in which a court has recognized the self-critical analysis privilege have involved Title VII of the 1964 Civil Rights Act. In these eases, plaintiffs were seeking discovery of reports, mandated by either the federal or a state government, detailing an employer’s equal opportunity policies and affirmative action plans. [152]*152See Banks v. Lockheed-Georgia Co., 53 F.R.D. 283 (N.D.Ga.1971). The courts in these Title VII cases involving mandatory employer reports have held that allowing plaintiffs to discover such reports would discourage employers from making candid evaluations of their equal-employment policies and undercut the public’s interest in fair employment practices. See McClain v. Mack Trucks, Inc., 85 F.R.D. 53 (E.D.Pa.1979). The rationale for applying the privilege in these Title VII cases is thus similar to that stated by the Bredice court: the public’s interest outweighs the needs of the individual plaintiff.

In Title VII eases involving affirmative action plans not mandated by the government, however, the self-critical analysis privilege has usually not been applied. In Hardy v. New York News, Inc., 114 F.R.D. 633 (S.D.N.Y.1987), the court refused to shield documents voluntarily drafted by the employer from discovery by plaintiffs. The court observed that “in the area of employment discrimination virtually every court has limited the privilege to information or reports that are mandated by statute or regulation.” Id. at 641. The court further noted:

Those courts that have recognized a privilege for self-critical analysis have nonetheless held that the privilege is qualified and that its application is subject to a balancing of the general policy interests against the interests of the individual plaintiff.

Id.

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Related

Kevin T. Dowling v. American Hawaii Cruises, Inc.
971 F.2d 423 (Ninth Circuit, 1992)

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133 F.R.D. 150, 1991 A.M.C. 51, 1990 U.S. Dist. LEXIS 16541, 1990 WL 190532, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dowling-v-american-hawaii-cruises-inc-hid-1990.