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Bobryk v. Durand Glass Manufacturing Company, Inc.

United States District Court, Third Circuit

October 11, 2013

CINDY BOBRYK, et al., Plaintiffs,


JOEL SCHNEIDER, Magistrate Judge.

This matter is before the Court on defendant's Motion for Protective Order, [Doc. No. 34]. Defendant claims wage and hour inspection and audit reports of its Millville, New Jersey facility are protected by the "self-critical analysis" privilege and do not have to be produced in discovery.[1] Plaintiffs disagree and insist the documents be produced. The Court received plaintiffs' opposition [Doc. No. 40] and defendant's reply [Doc. No. 41]. The Court recently leld oral argument. After the conclusion of oral argument the Court denied defendant's motion. This Memorandum Opinion explains in more detail the basis of the Court's decision.


Plaintiff Cindy Bobryk filed this action on August 24, 2012, individually and on "behalf of all those similarly situated" present and former employees of defendant Durand Glass Manufacturing Company, Inc. ("Durand").[2] Bobryk seeks payment of unpaid overtime and wages, certification of the case as a collective action under the Fair Labor Standards Act, 29 U.S.C. ยง216(b), and certification of a class action pursuant to Fed.R.Civ.P. 23.

Durand is a glass manufacturer. As a condition to maintaining its business relationship with certain of its customers, the customers required that Durand's facility be inspected to assure compliance with, inter alia, applicable wage and hour laws. The inspections and reports were prepared by third-parties. Although Durand contends that it paid for some inspections and its customers paid for others, it could not identify who paid for the inspections at issue.

Approximately fifteen (15) documents are at issue, all of which the Court reviewed in camera. The documents touch on five inspections and include the actual inspection reports, resulting corrective actions, and a handful of internal e-mails regarding the inspections. The relevancy of the documents is not at issue. The documents address inspections that occurred during the proposed class period and discuss issues the parties dispute. The sole basis of defendant's motion is its contention that the subject documents are protected by the self-critical analysis privilege.


The self-critical analysis privilege has been recognized when confidentiality "is essential to the free flow of information and... the free flow of information is essential to recognize public interests." Harding v. Dana Transport, Inc. , 914 F.Supp. 1084, 1100 (D.N.J. 1996) (citation and quotation omitted). The privilege protects from disclosure evaluative materials "created in accordance with governmental requirements, or for purposes of self-improvement'." See Craig v. Rite Aid Corp., C.A. No. 4:08-CV-2317, 2010 WL 5463292, at *2 (E.D. Pa. Dec. 29, 2010). The purpose of the privilege is to "encourage self-evaluation and the benefits that may flow therefrom, and to avoid the chilling effect upon such self-analysis which would result from complete disclosure." Todd v. South Jersey Hosp. System , 152 F.R.D. 676, 682 (D.N.J. 1993). "[C]onfidentiality and the public need for confidentiality are sine qua non of effective internal self-critical analysis." Id. at 683-84 (citation and quotation omitted).

Although the precise parameters of the self-critical analysis privilege are fuzzy, some principles are clear. First, although the privilege has been applied in several New Jersey District Court cases, (see, e.g., Bracco Diagnostics, Inc. v. Amersham Health, Inc., C.A. No. 03-6025 (FLW) , 2006 WL 2946469, at **1, 9 (D.N.J. Oct. 16, 2006); Brunt v. Hunterdon Cnty. , 183 F.R.D. 181, 185-86 (D.N.J. 1998)), the privilege has not been recognized by the Third Circuit. See Alaska Elec. Pension Fund v. Pharmacia Corp. , 554 F.3d 342, 351 n.12 (3d Cir. 2009) ("[W]e are unpersuaded by the [lower] court's reliance on the so-called self-critical analysis privilege'.... The self-critical analysis privilege has never been recognized by this Court and we see no reason to recognize it now."). Nor has the self-critical analysis privilege been adopted in New Jersey. Payton v. New Jersey Turnpike Authority , 148 N.J. 524, 545 (1997) (citation omitted) ("We decline to adopt the privilege of self-critical analysis as a full privilege, either qualified or absolute, and disavow the statements in those lower court decisions that have accorded materials covered by the supposed privilege near-absolute protection from disclosure.").[3]

Another main principle that can be drawn from the case law is that even if the self-critical analysis privilege applies it only covers subjective or evaluative materials, not objective materials or facts. See Harding , 914 F.Supp. at 1100-1101; Webb v. Westinghouse Elec. Corp. , 81 F.R.D. 431, 434 (F.D. Pa. 1978) (finding that subjective evaluations in the requested materials were protected by the self-critical analysis privilege, but "objective data contained in those same reports" were not protected); McAllister ex rel. McAllister v. Royal Caribbean Cruises, Ltd., No. 02-2393 , 2004 WL 2216487, at (E.D. Pa. Oct. 4, 2004) (holding that the self-critical analysis privilege applied to protect reports containing mostly subjective and evaluative material); Freiermuth v. PPG Industries, Inc. , 218 F.R.D. 694, 698 (N.D. Ala. 2003) (concluding that the self-critical analysis privilege was not applicable because the requested documents did not contain subjective evaluations).

The most recent District of New Jersey case thoroughly analyzing the applicability of the self-critical analysis privilege is Bracco, supra. As Bracco noted, the factors a court must balance to decide whether the privilege applies are:

(1) whether the information is the result of a self critical analysis undertaken by the party seeking protection, (2) the extent to which the information is available from other sources, (3) the degree of harm the litigant will suffer from the information's unavailability, (4) the possible prejudice to the party asserting the privilege, (5) the public interest in preserving the free flow of the type of information sought, and (6) whether the information is of the type whose flow would be curtailed if discovery were allowed.


When applying these factors the Court is mindful that the Federal Rules of Civil Procedure "allow broad and liberal discovery." Pacitti v. Macy's , 193 F.3d 766, 777 (3d Cir. 1999). Pursuant to Rule 26(b) (1), "[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense.... Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." The Court is also mindful that it is defendant's burden to prove that a privilege exists and applies. In re Grand Jury Investigation , 918 F.2d 374, 385 n. 15 (3d Cir. 1990). In addition, the Court notes 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, 710 (1974); see also Zimmerman v. Norfolk Southern Corp. , 706 F.3d 170, 181 (3d Cir. ...

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