Truck accidents, employment accidents, and product failures often generate an internal investigation by the company whose truck, plant, or product was involved. This is particularly true for a company trying to operate a safe business. A responsible company never wants an accident to happen and always wants to do what it reasonable to avoid one from happening in the future.
In order to avoid an accident from happening in the future, you have to understand what caused it to happen in the first place. These investigations need to be done as an ordinary course of business if one is to achieve the desired result.
Yet, because such investigations can take place before anyone thinks about being sued or hiring a lawyer, the traditional attorney client privilege or work product privilege may not apply. Thus, while a company may want to investigate what has happened, doing so can open the investigation up to discovery in the event of a resulting lawsuit. That prospect can deter investigations and thereby prevent safety improvements that protect citizens.
In traditional times, this was a Catch-22 that you just had to live with. More recently, the Courts have developed the “self-critical analysis” privilege (also often called “peer review privilege,” “deliberative privilege,” and “self-evaluation privilege”) to address this problem. After all, society benefits from safety improvements. We ought to encourage them, not discourage them.
Alabama has taken steps in that direction, though more so in Alabama federal courts than state courts. The Alabama Supreme Court has stated that “there has been some recognition . . . of a privilege for certain corporate records under the rubric ‘self-evaluative reports.’” Cryer v Corbett, 814 So.2d 239, 249 & n.3 (Ala. 2001)(internal quotation marks omitted.)
The Alabama federal courts have fleshed out the details of the privilege. The Northern District of Alabama has explained the four typical criteria required to find a self-critical analysis privilege:
- the information must result from a critical self-analysis undertaken by the defendant;
- the public must have a strong interest in preserving the free flow of this information;
- the flow of this information would be curtailed if discovery were allowed; and
- the document was prepared with the expectation that it would be kept confidential.
Freiermuth v. PPG Indus., 218 F.R.D. 694, 698 (N.D. Ala. 2003) (citing Reid v. Lockheed Martin Aeronautics Co., 199 F.R.D. 379, 386 (N.D. Ga. 2001)).
Other neighboring courts have provided additional instruction. The privilege protects “subjective analysis designed to have a positive societal effect,” though it does not extend to objective factual information. Reid, 199 F.R.D. at 386; see also McCollim v. CSX Transp., Inc., No. CV599-116, 2002 U.S. Dist. LEXIS 28865, at *5 (S.D. Ga. 2002) (recognizing that the privilege extends to “subjective impressions and opinions” but not the photographs taken during the investigation, which instead captured “objective information”).
“The self-critical analysis privilege is analogous to, and based on the same public policy considerations as [Federal] Rule [of Evidence] 407, . . . which excludes evidence of subsequent remedial measures.” Reichhold Chems. v. Textron, 157 F.R.D. 522, 524 (N.D. Fla. 1994); Fed. R. Evid. 407 (“When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove: negligence; culpable conduct; a defect in a product or its design; or a need for a warning or instruction.”)
Certainly these are the circumstances under which these investigations are almost always undertaken. Thus, as a practicing attorney, when an accident does end up in a claim or litigation, an investigation that was undertaken in the ordinary course of business can still be protected from discovery (or at least the conclusions drawn from that investigation can be) when it was performed as a means of understanding what happened so that your client can improve its safety practices and, thereby, contribute to a safer society.