Etienne v. Mitre Corp.

146 F.R.D. 145, 1993 U.S. Dist. LEXIS 7528, 62 Fair Empl. Prac. Cas. (BNA) 662, 1993 WL 46123
CourtDistrict Court, E.D. Virginia
DecidedFebruary 22, 1993
DocketCiv. A. No. 92-1585-A
StatusPublished
Cited by12 cases

This text of 146 F.R.D. 145 (Etienne v. Mitre Corp.) is published on Counsel Stack Legal Research, covering District Court, E.D. Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Etienne v. Mitre Corp., 146 F.R.D. 145, 1993 U.S. Dist. LEXIS 7528, 62 Fair Empl. Prac. Cas. (BNA) 662, 1993 WL 46123 (E.D. Va. 1993).

Opinion

MEMORANDUM OPINION & ORDER

BRINKEMA, United States Magistrate Judge.

This age discrimination lawsuit pits a former employee against his former employer, The Mitre Corporation (“Mitre”). Presently before the Court is plaintiffs motion to compel documents which contain data and studies compiled by defendant regarding its compliance with equal employment opportunity laws. Defendant claims that these documents are protected from being discovered by the self-critical analysis privilege.1 The salary and promotion reviews, some of which were performed by an outside consultant, contain impact ratio analyses which were conducted to determine if any protected groups, including persons over the age of 40, were adversely affected during the period 1989-92. Comparisons of ladder level distributions were made on the basis of race, gender, ethnicity and age.

As a government contractor, Mitre is subject to the equal employment opportunity audits conducted by the Office of Federal Contract Compliance Programs (“OFCCP”). The impact ratio analysis methodology used in defendant’s studies is, therefore, the same as that which is used by the OFCCP in the course of its audits.

Pursuant to this Court’s Order of February 5, 1993, the undersigned has conducted an in camera review of the documents sought by plaintiff which defendant claims are protected from being discovered by the self-critical analysis privilege. For the reasons that follow, the Court finds that these documents are not protected by the self-critical analysis privilege.

I. The Self-Critical Analysis Privilege

Federal Rule of Evidence 501 generally leaves the area of privilege to the trial court’s discretion.2 In enacting Rule 501, Congress clearly rejected the creation of specific privileges in favor of providing the [147]*147courts with greater flexibility. See, Trammel v. United States, 445 U.S. 40, 47, 100 S.Ct. 906, 910, 63 L.Ed.2d 186 (1980) (stating that Rule 501 provides for development of privilege law on a “case-by-case basis”); S.Rep. No. 1277, 93rd Cong., 2nd Sess. 11 (1974), reprinted in 1974 U.S.C.C.A.N. 7051, 7059 (“[T]he recognition of a privilege based on a confidential relationship and other privileges should be determined on a case-by-case basis.”)

The self-critical analysis privilege was first recognized in Bredice v. Doctor’s Hospital, Inc., 50 F.R.D. 249 (D.D.C.1970), aff'd mem., 479 F.2d 920 (D.C.Cir.1973) when the court held that a decedent’s administratrix in a medical malpractice suit could not obtain discovery of the minutes and reports of a hospital staff review meeting. The court stressed that the confidentiality of the medical staff’s evaluation of potential improvements in its procedures and treatments was so essential to the self-review process that allowing discovery would chill the candor required for an effective internal review. Id. at 250. In particular, the court recognized that the long-term public benefits of improved health care outweighed the needs of the litigant seeking discovery, and, thus, should not be sacrificed without a showing of good cause. Id. at 251.

Since Bredice, the privilege has remained “largely undefined and not generally recognized by many authorities.” Guardian Life Insurance Co. v. Service Corp. Int’l, 1989 WL 3496, at *3 (E.D.Pa. Jan. 17, 1989). The privilege is generally invoked when a litigant attempts to discover committee or peer review reports in academic or medical settings,3 corporate internal investigation documents,4 and affirmative action documents voluntarily recorded in compliance with federal equal employment opportunity statutes.5

Although no court has expressly defined the self-critical analysis privilege, most courts have recognized three criteria which must be met in order for the privilege to apply. First, the information contained in the document must result from an internal investigation or review conducted to evaluate or improve a party’s procedures or products; second, the party must originally have intended that the information remain confidential and demonstrate “a strong interest in preserving the free flow of the type of information sought”; finally, the information contained in the documents ‘■‘must be of a type whose flow would be curtailed if discovery were allowed.” Dowling v. American Hawaii Cruises, Inc., 971 F.2d 423, 426 (9th Cir.1992) (quoting Note, The Privilege of Self-Critical Analysis, 96 Harv.L.Rev. 1083, 1086 (1983)); See S. Kay McNab, Criticizing the Self-Criticism Privilege, 1987 U.Ill.L.Rev. 675 (1987).

The third criterion typically requires the court to weigh the public interest served in preventing disclosure of confidential internal reviews against a plaintiff’s need for the material to prove its case. Over the years, this balancing of public and private interests has become the essential consideration when a court decides whether the privilege should prevent disclosure of relevant information.6 Essentially, the court must determine whether the type of inter[148]*148nal review conducted by the party invoking the privilege is one that benefits the public interest and would be curtailed in the future if it were subject to disclosure during civil discovery.

In employment discrimination cases, most courts have held that affirmative action plans and equal employment opportunity reports compiled pursuant to the requirements of Title VII are not protected by the self-critical analysis privilege. See Reynolds Metals Co. v. Rumsfeld, 564 F.2d 663, 667 (4th Cir.1977), cert. denied, 435 U.S. 995, 98 S.Ct. 1646, 56 L.Ed.2d 84 (1978); In re Burlington Northern, Inc, 679 F.2d 762 (8th Cir.1982). Because such reports and studies are produced involuntarily, there is no reasonable expectation by the employer that such material will remain confidential. Moreover, because of equal employment opportunity laws, which have obvious benefits to the public, such self-evaluations will hardly be curtailed in the future since they are mandated by law.

In the Fourth Circuit, where no court has yet to apply the privilege to prevent disclosure of documents during discovery,7 the self-critical analysis privilege was most recently held inapplicable to affirmative action reports in a race discrimination suit. Witten v. A.H. Smith & Co., 100 F.R.D. 446 (D.Md.1984), aff'd mem., 785 F.2d 306 (4th Cir.1986). In that case, the district court specifically determined that the future accuracy of such reports would not suffer from disclosure when they are compiled in accordance with federal equal employment opportunity laws. Id. at 452.

II. Defendant Mitre Corp.’s Privilege Claim

In the present employment discrimination suit, plaintiff has requested, inter alia,

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146 F.R.D. 145, 1993 U.S. Dist. LEXIS 7528, 62 Fair Empl. Prac. Cas. (BNA) 662, 1993 WL 46123, Counsel Stack Legal Research, https://law.counselstack.com/opinion/etienne-v-mitre-corp-vaed-1993.