Tag Archives: Self-Critical Analysis Privilege

N.D.Ill.: No “Self-Evaluation” Privilege Existed To Shield Relevant Documents From Discovery

Camilotes vs. Resurrection Healthcare

In their motion to compel, Plaintiffs sought information and documents from Defendants relating to Defendants’ participation in the National Database of Nurse Quality Indications (“NDNQI”), a program operated by the American Nurses Association. The NDNQI is a comprehensive database consisting of information compiled from various hospitals. The database includes data compiled from a RN Satisfaction Survey, which includes questions regarding nurses’ meal breaks, shifts and hours. Hospitals participate in the NDNQI in order to improve patient care and nursing practices. The NDNQI provides assurances of anonymity and confidentiality to the nurses who participate in the program.

Declining to shield such discovery under Defendants’ claim of “self-evaluation” privilege, the Court reasoned:

“Defendants contend that the self-evaluation privilege protects the reports and documents sought by Plaintiffs from discovery. “The self-critical analysis privilege is intended to encourage companies to engage in candid and often times critical internal investigations of their own possible wrong doings.”   Ludwig v. Pilkington N. Am., Inc., 2004 WL 1898238, 2004 U.S. Dist. LEXIS 16049 (N.D.Ill. Aug. 13, 2004). “Despite the benefits of encouraging such investigations, courts have been somewhat hesitant to embrace the self-critical analysis privilege and have often qualified their uses of the privilege with phrases like ‘assuming that the self-critical analysis privilege exists’ or have noted that other courts have questioned the existence of such a privilege altogether.” Id. at *4. Significantly, the Seventh Circuit has “never recognized” the “self-critical analysis privilege.” Burden-Meeks v. Welch, 319 F.3d 897, 899 (7th Cir.2003); see also Gardner v. Johnson, 2008 WL 3823713, 2008 U.S. Dist. LEXIS 61707 (N.D.Ill. Aug. 13, 2008) (“The self-critical analysis privilege has never been adopted as federal common law by the Seventh Circuit.”). Indeed, when noting that the court has not recognized the privilege, the Seventh Circuit also highlighted that, “[m]any decisions caution against the creation of new privileges, even for what appear to be good reasons.” Burden-Meeks, 319 F.3d at 901 (citing University of Pennsylvania v. EEOC, 493 U.S. 182, 189, 107 L.Ed.2d 571, 110 S.Ct. 577 (1990)).

Defendants cite two cases in their motion to support the contention that courts in this district have applied the self-critical analysis privilege and found documents protected by the privilege. Neither case, however, is instructive because in those rulings the courts merely assumed or presumed that the privilege applied. Moreover, as one court in this district has recognized, “[t]he majority of courts that ultimately concede or assume the privilege exist have narrowed the privilege’s scope so that it does not apply to the documents at issue in the individual cases.” Ludwig, 2004 WL 1898238, 2004 U.S. Dist. LEXIS 16049, at *5 (N.D.Ill. Aug. 13, 2004). Considering that the Supreme Court instructs that privileges are “not lightly created nor expansively construed, for they are in derogation of the search for truth,” United States v. Nixon, 418 U.S. 683, 709 (1974), the Court finds more persuasive the decisions of district courts that have declined to apply the self-critical analysis privilege. See, e.g., EEOC v. City of Madison, 2007 WL 5414902, 2007 U.S. Dist. LEXIS 70647 (W.D.Wis. Sept. 20, 2007) (declining to recognize the “self-critical analysis privilege” because “[t]he Seventh Circuit has not recognized such a privilege”) (citing Burden-Meeks, 319 F.3d at 901); Ludwig, 2004 U.S. Dist. LEXIS 16049, at *8) (N.D.Ill. Aug. 13, 2004) (declining application of the self-critical analysis privilege in part based on the “tenuous” nature of the privilege); Bell v. Woodward Governor Co., 2004 U.S. Dist. LEXIS 1052, 2004 WL 5645759 (N.D.Ill. Jan. 26, 2004) (“Because the Seventh Circuit has not yet taken a definitive position on the proper scope of the self-critical analysis privilege, this court will rely on its past decisions in finding that the privilege does not exist with regards to affirmative action materials.”).

Moreover, it is clear that the documents and information sought by Plaintiffs are relevant to this dispute. In their complaint, Plaintiffs seek damages from Defendants for unpaid wages as a result of work performed during meal breaks. The NDNQI documents contain information regarding whether nurses received meal breaks, whether they interacted with patients during those meal breaks, and the duration of the meal breaks. The information contained in the NDNQI documents is thus relevant to Plaintiffs’ claims. Moreover, while Defendants contend that the documents are inadmissible hearsay, the Federal Rules of Civil Procedure only limit discovery to “any matter, not privileged, that is relevant to the claim or defense of any party” and specifically note that the discovery “need not be admissible at trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.” Fed.R.Civ.P. 26(b)(1); see also Automated Solutions Corp. v. Paragon Data Sys., 231 Fed. Appx. 495, 497 (7th Cir.2007.)

Finally, while the Court recognizes that disclosure of the NDNQI data to Plaintiffs may raise confidentiality concerns, the protective order already in place in this matter should allay any concerns in this regard.

For the foregoing reasons, the Court grants Plaintiffs’ motion to compel. Defendants are to produce responsive documents and information to Plaintiffs’ Second Request for the Production of Documents by August 23, 2010.”

The Court thus joined other courts that have declined to recognize the self-evaluation privilege, such as the case previously reported here.

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E.D.Ky.: “Self-Critical Analysis” Privilege Does Not Shield Employer From Disclosure Of Documents Relating To FLSA Classification; Such Discovery Is Relevant To Issues Of “Good Faith” And Willfulness

Cochran v. National Processing Co.

This matter was before the Court on the Motions to Quash filed by the Defendants.  Defendants sought to quash a subpoena issued by the Court and served on one of the Defendants (Hanna), seeking documents relating to the FLSA classification of the Plaintiffs, who were employees of Defendant, National, assigned to work for Defendant, Hanna.  Defendants argued that the documents requested in the subpoena are protected under the self-critical analysis privilege and that they are beyond the scope of discovery.

The underlying action was pending in the United States District Court for the Southern District of Texas.  National was the Defendant in the Texas action. The Plaintiffs in that action are current and former National employees. They asserted a claim against National under the Fair Labor Standards Act, alleging that National had improperly classified them as “exempt” employees under the Act and has, thus, improperly failed to pay them overtime.  Hanna, which is located in Lexington, Kentucky, was not a party to the Texas action. However, the subpoena required Hanna to produce certain documents relating to work performed by Hanna for National regarding National’s policies and procedures for paying overtime.

Discussing the lack of “self critical analysis” privilege, the Court stated:

“National argues that the documents sought by the Plaintiffs are protected by the ‘self-critical analysis privilege.’

As an initial matter, it is not clear that the privilege exists. As support for its argument that the Sixth Circuit has adopted the self-critical analysis privilege, the Plaintiffs cite ASARCO, Inc. v. N.L.R.B., 805 F.2d 194 (6th Cir.1986). In that case, the Sixth Circuit determined that the employer should not have to disclose self-critical reports prepared after serious accidents in order to improve safety and prevent similar mishaps. Id. at 199. The court determined that “[t]he practice of uninhibited self-critical analysis, which benefits both the union’s and employer’s substantial interest in increased worker safety and accident prevention, would undoubtedly be chilled by disclosure.” Id. at 200.

However, that case involved a company’s duty to turn over certain information in collective bargaining efforts with the employee’s union. The Sixth Circuit specifically noted that items subject to discovery in litigation may not be subject to disclosure “in the collective bargaining context” and that any duty to disclose in that context must be evaluated in light of the rights and obligations created by the National Labor Relations Act. Id. at 199.

Even after ASARCO, district courts have found that the Sixth Circuit has never explicitly adopted the self-critical analysis privilege. See United States v. Allison Engine Company, Inc., 196 F.R.D. 310, 313-14 (S.D.Ohio 2000); Hickman v. Whirlpool Corp., 186 F.R.D. 362, 363 (N.D.Ohio 1999).

One district court has summarized the status of the privilege as follows:

Furthermore, “no circuit court of appeals has explicitly recognized the self-critical analysis privilege.” Johnson v. United Parcel Serv., Inc., 206 F.R.D. 686, 689-90 (M.D.Fla.2002). Most important, the validity of the self-critical analysis privilege is highly doubtful in light of the Supreme Court’s decision University of Pennsylvania v. EEOC, 493 U.S. 182, 110 S .Ct. 577, 107 L.Ed.2d 571 (1990), which declined to recognize a common law privilege against disclosure of confidential peer review materials.Granberry v. Jet Blue Airways, 228 F.R.D. 647, 650 (N.D.Cal.2005).

In Allison Engine, the court considered a claim of self-critical analysis privilege regarding internal audits of quality control for products supplied to the United States Navy. It applied a four-part test from Bredice v. Doctors Hosp., Inc., 50 F.R.D. 249 (D.D.C.1970):

(1) the information must result from self-critical analysis undertaken by the party seeking protection; (2) the public must have a strong interest in preserving the free flow of the type of information sought; (3) the information must be of the type whose flow would be curtailed if discovery were allowed; and (4) no documents should be accorded the privilege unless it was prepared with the expectation that it would be kept confidential.

Allison Engine, 196 F.R.D. at 312.

The court rejected the privilege in that case, noting that the privilege had rarely been applied and that its very rationale had been called into doubt.   Id. at 313.See also Wade v. Washington Metropolitan Area Transit Authority, 2006 WL 890679 at * 5 (D.D.C.2006)(the privilege is “rarely recognized.”)

Even if the Sixth Circuit has or would adopt the privilege, National would not meet all four elements of the test set forth above. National argues that the documents requested from Hanna relate to an evaluation that National hired Hanna to perform of National’s classification of employees as exempt or non-exempt under the FLSA. However, clearly not all the information contained in documents relating to the evaluation are necessarily protected by the privilege:

The privilege is not absolute. It applies only to analysis or evaluation, not the facts on which evaluation is based. See In re: Crazy Eddie Securities Litigation, 792 F.Supp. 197, 205 (E.D.N .Y.1992). Courts have protected analytical or evaluative information but allowed discovery of factual information. See Troupin, 169 F.R.D. at 550. Under the privilege, parties are not required to reveal self-critical analyses, but must produce data or statistical information. See Roberts v. National Detroit Corp., 87 F.R.D. 30, 32 (E.D.Mich.1980). Information, documents or records otherwise available from other sources are not immune from discovery. See Shipes, 154 F.R.D. at 307 (citing Hollowell v. Jove, 247 Ga. 678, 279 S.E.2d 430, 434 (1981)). Additionally, this is a qualified privilege and it can be overcome by showing extraordinary circumstances or special need. See Reichhold Chem. Inc., 157 F.R.D. at 527. The privilege must be balanced against the opposing party’s need for discovery. See In re: Crazy Eddie Securities Litigation, 792 F.Supp. at 205Allison Engine, 196 F.R.D. at 315.

The subpoena requests “all documents relating or pertaining to any review(s), audit(s), consulting or human resources management-related work performed by you for [National] regarding its policies or procedures concerning payment of overtime and/or classification of employees for overtime purposes,” and “all communications between you and anyone with [National] related to its policies or procedures concerning payment of overtime and/or classification of employees for overtime purposes.”

National has produced no evidence at all regarding the kinds of information contained in the documents requested, i.e., whether the information is “analysis” or “evaluation” or whether the information is “factual.” Thus, the Court has no basis for finding any of the documents are privileged.

Further, the privilege is most often applied in cases involving public health or safety. First Eastern Corp. v. Mainwaring, 21 F.3d 465, 467 n. 1 (C.A.D.C.1994). In fact the privilege was “initially developed to promote public safety by encouraging businesses to voluntarily evaluate their safety procedures. Morgan v. Union Pacific R. Co., 182 F.R.D. 261, 265 (N.D.Ill.1998)(citing Bredice v. Doctors Hosp. Inc., 50 F.R.D. 249, 251 (D.D.C.1970)). “Because production of such documents ‘would tend to hamper honest, candid self-evaluation geared toward the prevention of future accidents,’ the doctrine evolved in order ‘to prevent a ‘chilling’ effect on self-analysis and self-evaluation prepared for the purpose of protecting the public by instituting practices assuring safer operations.’ “ Id. (citing Granger v. National R.R. Passenger Corp., 116 F.R.D. 507, 508-509 (E.D.Pa.1987)).

While the privilege has been applied in other settings, the “essence of the privilege is the value to the public of continuing the free flow of the type of information created by the analysis. Consequently, the inquiry focuses on the public policy requirement, that is, whether disclosure of material generated by a party’s self-critical analysis will discourage or curtail future such studies.” Drayton v. Pilgrim’s Pride Corp., 2005 WL 2094903 at *2 (E.D.Pa.2005).

The assessment at issue in this case involved National’s classification of employees as exempt or non-exempt under the FLSA. National argues that it hired Hanna to develop and implement a compensation structure for the company including an evaluation of National’s classification of employees as exempt or non-exempt under the FLSA. Disclosure of that assessment will not inhibit National from conducting further such assessments. In order to pay its employees, it obviously must continue to classify them as exempt or non-exempt. Thus, to the extent that the Hanna report contained any “evaluation” or “analysis,” National must continue to engage in that analysis in order to pay its employees and avoid liability under the Act.

The privilege has been extended to employment cases to “protect business entities which are legally mandated to critically evaluate their hiring and personnel policies.” Morgan v. Union Pacific R. Co., 182 F.R.D. 261, 265 (N.D.Ill.1998). However, the rationale for the privilege in employment cases is different than it is for tort cases. While, “the justification for the privilege in tort cases is to promote public safety through voluntary and honest self analysis,” id., the privilege in employment cases is meant to “protect those businesses that are required to engage in critical self-evaluation from exposure to liability resulting from their mandatory investigations.” Id. To the extent that Hanna’s assessment contained any “evaluation” or “analysis,” National has pointed to no law requiring such an evaluation.

For all these reasons, the Court hold that the Hanna documents are not protected under the self-critical analysis privilege.

Next the Court addressed Defendants’ argument that the documents sought were not relevant.  Rejecting this argument, the Court explained, “National objects that the documents sought are not relevant to the Plaintiffs’ action and Hanna has joined in that objection. National argues that the Plaintiffs are IT Support Technicians in Texas but that the subpoena seeks information about every National employee and that it seeks information beyond the classification of those employees under the FLSA.

The Plaintiffs argue that the documents are relevant to the “good faith” defense to the imposition of liquidated damages under the Act and to the extended statutory limitations period for “willful violations” of the Act. National has asserted the good faith defense and has denied any willful violations or purposes of extending the limitations period. The Plaintiffs argue that the defense “delves into the mind of the employer” and, thus, communications with Hanna regarding interpretation and application of the FLSA are relevant.

The Court agrees with the Plaintiffs that National’s communications with Hanna regarding the FLSA classification of its employees for overtime purposes is relevant to National’s “good faith” and “willfulness.” The subpoena is confined to documents regarding “payment of overtime and/or classification of employees for overtime purposes.” Accordingly, the documents requested in the subpoena are discoverable.”

EDITOR’S NOTE:  Within days of the issuance of the Order in this case, a court within the Northern District of California held that there is no such thing as the “self-critical analysis” privilege.  See Lewis v. Well Fargo & Co., 2010 WL 890183 (N.D.Cal. March 12, 2010).

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