analysis privilege was omitted from the list of privileges identified by the Advisory Committee on Rules of Evidence in 1972. Importantly, while Congress declined to adopt the proposed Rules of Evidence, it did not disapprove them. D'Aurizio, supra, 899 F. Supp. at 1356. "The proposed rules provide a useful reference point and offer guidance in defining the existence and scope of evidentiary privileges in the federal courts." In re Grand Jury Investigation (Appeal of United States), supra, 918 F.2d at 380.
In Gillock the Supreme Court stated that, since "neither the Advisory Committee, the Judicial Conference, nor this Court saw fit . . . to provide the privilege sought . . . that fact . . . does suggest that the claimed privilege was not thought to be either indelibly ensconced in our common law or an imperative of federalism. 445 U.S. at 367-68 (footnote omitted).
The omission of the self-critical analysis privilege from the proposed privileges strongly indicates that the Advisory Committee, similar to the majority of state legislatures, did not find the privilege "indelibly ensconced" in the federal common law. "A federal court should give due consideration, and accord proper weight, to the judgment of the Advisory Committee and of state legislatures on this issue when it evaluates whether it is appropriate to create a new privilege pursuant to Rule 501." In re: Grand Jury, supra, 103 F.3d at 1151.
6. Privilege Does Not Foster Important Public Interests
"Common law privileges exist to foster underlying societal values."
D'Aurizio, supra, 899 F. Supp. at 1360. I am not persuaded by plaintiff's arguments that the self-critical analysis privilege furthers important public interests.
Most recently, the controversy surrounding recognition of the self-critical analysis privilege has arisen in the context of employment discrimination suits. Those courts which have held that the privilege protects internal evaluations of affirmative action programs have noted that these programs "depend to a certain degree on voluntary compliance by employers and that employers must feel free to be candid in expressing their goals and policies for eradicating discrimination." Adams v. Pinole Point Steel Co., 65 Fair Empl. Prac. Cas. (BNA) 782, 783 (N.D. Cal. 1994); see Webb v. Westinghouse Elec. Corp., 81 F.R.D. 431, 433 (E.D. Pa. 1978); Dickerson v. U.S. Steel Corp., 14 Fair Empl. Prac. Cas. (BNA) 1448, 1449 (E.D. Pa. 1976). If disclosure of these programs is compelled, employers' compliance with government-mandated reporting might be hindered. See Dickerson, 14 Fair Empl. Prac. Cas. (BNA) at 1449 (reasoning that compelled disclosure will discourage employers from making candid evaluations and encourage them to set equal employment goals at minimum levels).
However, based on societal interests, a significant number of courts have declined to recognize the privilege as applied to such programs. First, "litigation is itself a means of furthering the goal of equal employment opportunity." Martin v. Potomac Electric Power Co., 1990 U.S. Dist. LEXIS 11688, 58 Fair Empl. Prac. Cas. (BNA) 355, 357 (D.D.C. 1990); see Etienne v. Mitre Corp., 146 F.R.D. 145, 148-49 (E.D. Va. 1993) (noting that private parties file suits to "eradicate discriminatory practices of private employers"); Hardy, supra, 114 F.R.D. at 640 (stressing strong public policy which favors "private enforcement of anti-discrimination laws").
To the extent that the privilege prevents a party from obtaining the evidence needed to prove discriminatory intent, the privilege inhibits the promotion of enforcing equal employment laws. Webb, 81 F.R.D. at 433; Martin, 58 Fair Empl. Prac. Cas. (BNA) at 357. Courts have stressed the importance of remaining "cognizant of the possible resulting perils when disclosure is prevented of those documents which may yield crucial evidence regarding an employer's intent and motivation." Tharp, 149 F.R.D. 177, 62 Fair Empl. Prac. Cas. (BNA) 570, 576; see Hardy, 114 F.R.D. at 640 ("'in resolving the tensions between the opposed needs of disclosure [and] confidentiality we are reminded that the discovery rules are to be accorded broad and liberal treatment, particularly where proof of intent is required'") (quoting Gray v. Board of Higher Education, 692 F.2d 901, 904 (2d Cir. 1982)).
Second, some courts have declined to recognize the privilege, in part, because often affirmative action programs are created solely to comply with government-mandated reporting Tharp v. Sivyer Steel Corp., 149 F.R.D. 177, 62 Fair Empl. Prac. Cas. (BNA) 570, 575 (S.D. Iowa 1993); Adams, 65 Fair Empl. Prac. Cas. (BNA) at 783. These courts reason that "disclosure . . . will not result in diminished equal employment evaluations because employers are mandated to file them." Tharp, 62 Fair Empl. Prac. Cas. (BNA) at 575; see Etienne v. Mitre Corp., 146 F.R.D. 145, 148 (E.D. Pa. 1993); Witten v. A.H. Smith & Co., 100 F.R.D. 446, 452-54 (D.Md. 1984); O'Connor v. Chrysler Corp., 86 F.R.D. 211, 217 (D. Mass. 1980); see also 41 C.F.R. § 60-1.40 (1992) (identifying federal employers which must comply with development and implementation of affirmative action plans); 41 C.F.R. § 60.2.10 et seq. (describing contents of mandated affirmative action programs).
Here, in issue are plaintiff's self-evaluative reviews and reports which were created absent any government mandate. "Where self-evaluation has been voluntarily undertaken, 'neither that fairness rationale nor [an] effective enforcement rationale operates . . . . No unfairness exists, for no third party required [the defendant] to make a critical self-evaluation, or indeed, any evaluation at all.'" Hardy, 114 F.R.D. at 641 (quoting Resnick v. American Dental Ass'n, 95 F.R.D. 372, 375 (N.D. Ill. 1982)). Accordingly, the justifications in support of applying the privilege to government-mandated reports bear no relevance to my ruling today.
Finally, I note that, under appropriate facts, a self-critical analysis could be protected from discovery by the attorney-client privilege or the work product doctrine. See generally Upjohn v. United States, 449 U.S. 383, 398-401, 66 L. Ed. 2d 584, 101 S. Ct. 677 (1981). The Supreme Court in Upjohn stressed:
"Rule 26 accords special protection to work product revealing the attorney's mental processes. . . . 'in ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions or legal theories of an attorney or other representative of a party concerning the litigation.'" [ 449 U.S. at 400].
See Harding, supra, 914 F. Supp. at 1100-01, 1103 (finding that substance of investigation conducted by corporation's outside counsel fell within scope of attorney-client privilege and work product doctrine; however, investigatory materials fell outside confines of self-critical analysis privilege); Deason, The Self-Critical Analysis Privilege and Discovery of Affirmative Action Plans in Title VII Suits, 83 MICH. L. REV. 405, 429 (Nov. 1984) ("employer's privacy interests can be protected through the broad control of courts over the relevancy and burdensomeness of discovery. Rule 26(c) . . . facilitates this control by authorizing courts to enter a protective order limiting discovery. . ."); McNab, supra, at 689 ("Rather than creating a self-criticism privilege with broad parameters, courts should recognize that existing tools for controlling discovery present a more legitimate way to protect sensitive materials. . ."). The availability of these protections argues against the recognition of a new privilege.
I am satisfied that the self-critical analysis privilege should not be recognized at federal common law. Accordingly, I need not decide whether the documents in issue fall within the privilege or whether plaintiff has waived it.
For the reasons set forth above, I am satisfied that a self-critical analysis privilege does not exist at federal common law. The application of defendants to compel disclosure of the documents in issue is GRANTED. An appropriate Order accompanies this Opinion.
RONALD J. HEDGES
United States Magistrate Judge
DATED: March 7, 1997
ORDER - ENTERED on THE DOCKET 3-10-1997
This matter having come before the Court on the application of defendants Excell Mortgage Company, David Greenberg, Greenberg & Covitz, and Group One for an order compelling the disclosure of certain documents; for the reasons set forth in the accompanying Opinion;
IT IS on this 7th day of March, 1997
ORDERED that the application is GRANTED. Plaintiff is to produce the documents in issue within ten days from the date hereof.
RONALD J. HEDGES