Reid v. Lockheed Martin Aeronautics Co.

199 F.R.D. 379, 2001 U.S. Dist. LEXIS 11160, 2001 WL 261766
CourtDistrict Court, N.D. Georgia
DecidedMarch 9, 2001
DocketNos. Civ.A. 1:00CV1182JOF, Civ.A. 1:00CV1183JOF
StatusPublished
Cited by5 cases

This text of 199 F.R.D. 379 (Reid v. Lockheed Martin Aeronautics Co.) is published on Counsel Stack Legal Research, covering District Court, N.D. Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Reid v. Lockheed Martin Aeronautics Co., 199 F.R.D. 379, 2001 U.S. Dist. LEXIS 11160, 2001 WL 261766 (N.D. Ga. 2001).

Opinion

ORDER

FORRESTER, District Judge.

This matter is before the court on Plaintiffs’ motions to compel documents withheld under the self-critical analysis privilege.

I. STATEMENT OF THE CASE

Plaintiffs filed these two civil rights actions on May 10, 2000, alleging that Defendants, among other things, have engaged in racial discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., as amended by the Civil Rights Act of 1991, 42 U.S.C. § 1981 a (“Title VII”). On December 12, 2000, Plaintiffs filed motions to compel Defendants Lockheed Martin Aeronautics Company and Lockheed Martin Corporation (collectively referred to as “Lockheed”) to produce certain documents responsive to Plaintiffs’ first requests for production. Among the issues raised in these motions was Defendants’ assertion of the self-critical analysis privilege (“SCA”). On February 7, 2001, Plaintiffs filed second motions to compel documents withheld under the SCA. The documents sought are grouped into three categories: (1) Affirmative action plans submitted to the Office of Federal Contract Compliance Programs (“OFCCP”); (2) data processing reports concerning compliance with OFCCP goals; and (3) reports commissioned by Lockheed regarding the company’s work culture.1 The court held a hearing on these motions on February 8, 2001, and granted in part and denied in part Plaintiffs’ first motions to compel. The court held in abeyance ruling on the second motions to compel concerning the SCA.

The court held a second hearing on March 1, 2001 to consider discovery disputes that arose after the court’s first hearing. In this second hearing, the court again held in abeyance Plaintiffs’ second motions to compel and directed Lockheed to produce samples of the withheld documents for in camera review on Monday, March 5, 2001. Noting that Plaintiffs had challenged only the assertion of the [381]*381SCA, the court stated that Lockheed could exclude from the in camera review any documents to which another privilege had been claimed without challenge. On March 5, 2001, Lockheed produced the following documents for in camera inspection: (1) Lockheed’s 1997 affirmative action plan with appendices and exhibits, including impact ratio analyses, job group analyses, availability analyses, utilization analyses, and goals; (2) three reports, numbered 87-307, 87-308, and 87-309, concerning utilization goals for the various branches at Lockheed; (3) job area acceptance range reports; (4) báck-up data reports for layoffs, transfers, terminations and promotions; (5) reconciliation reports; (6) a publication produced by the United States Department of Education concerning educational statistics; (7) control and compare reports for Lockheed’s databases; (8) worksheets for determining eight-factor analyses required for OFCCP reporting; (9) materials concerning progress toward affirmative action goals; and (10) reports for Lockheed’s Diversity Council relating to the company’s work culture.

II. DISCUSSION

Lockheed claims that each of the aforementioned documents is subject to the SCA and therefore need not be produced. Plaintiffs, on the other hand, question the SCA’s applicability in the employment discrimination context and contend that the privilege cannot be applied to the instant dispute. Alternatively, Plaintiffs argue that, even should the privilege be found to apply in this case, the documents at issue do not fall within the scope of the SCA. For the following reasons, the court concludes that the SCA may apply in the employment discrimination context and does so under the circumstances of this case. The court further finds that, while certain of the withheld documents are protected by the SCA, others fall outside the scope of the privilege and should be produced.

A. The SCA’s Applicability in Employment Discrimination Cases

1. Origins and Development of the SCA

The SCA is generally said to have originated in Bredice v. Doctors Hosp., Inc., 50 F.R.D. 249 (D.D.C.1970), aff'd, 479 F.2d 920 (C.A.D.C.1971) (table disposition). In that medical malpractice case, the court held that the plaintiff was not entitled to discover the retrospective minutes and reports of certain medical staff meetings in which the physicians critically reviewed and analyzed the treatment provided by the hospital. Noting that the purpose of the staff meetings was the improvement of the efficiency of the medical procedures and techniques utilized in patient care, the court concluded that confidentiality was essential to candid deliberations and that an “overwhelming public interest” in maintaining that candor provided the basis for a qualified privilege. Id. at 250-51. Accordingly, absent evidence of extraordinary circumstances, the court refused to compel production of the requested documents. Id. at 251.

The first application of the SCA in the employment discrimination context occurred in Banks v. Lockheed-Georgia Co., 53 F.R.D. 283 (N.D.Ga.1971) (O’Kelley, J.). In Banks, the plaintiffs sought the production of “[a]ll analyses, reports, interim reports, and any other written material prepared by the [defendant’s] equal employment opportunity ‘team....’” Id. at 284. The equal employment opportunity team had been commissioned by the defendant both to study the defendant’s equal employment opportunity problems and to determine the progress of the defendant’s affirmative action plans. The team’s findings were produced in an internal report, which in turn had been used to produce a formal report, pursuant to Executive Order 11246, which was submitted to the predecessor of the OFCCP. The defendant agreed to produce the formal report presented to the government, but it objected to producing the internal report on the ground that it contained self-critical analysis. Relying on Bredice, the court agreed that the internal report need not be produced, explaining that “it would be contrary to [public] policy to discouragé frank self-criticism and evaluation in the development of affirmative action programs of this .kind.” Id. at 285. The court further explained that disclosure of the internal report, which contained the writ[382]*382ten opinions and conclusions of the defendant’s own research team, “would discourage companies ... from making investigations which are calculated to have a positive effect on equalizing employment opportunities.” Id. Accordingly, the court denied the plaintiffs motion to compel.

In the thirty years since Bredice and Banks were decided, the existence and parameters of the SCA have been anything but clear. As one court has noted, “[t]he Supreme Court and the circuit courts have neither definitively denied the existence of such a privilege, nor accepted it and defined its scope.” Dowling v. American Hawaii Cruises, Inc., 971 F.2d 423, 425 n. 1 (9th Cir.1992). A few federal appellate courts, however, have suggested that the policy rationales underlying the SCA are valid. See, e.g., ASARCO, Inc. v. NLRB, 805

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Bluebook (online)
199 F.R.D. 379, 2001 U.S. Dist. LEXIS 11160, 2001 WL 261766, Counsel Stack Legal Research, https://law.counselstack.com/opinion/reid-v-lockheed-martin-aeronautics-co-gand-2001.