Chapter 12 - § 12.8 • SELF-CRITICAL ANALYSIS PRIVILEGE

• Jurisdiction: Colorado

§ 12.8 • SELF-CRITICAL ANALYSIS PRIVILEGE

§ 12.8.1—The Privilege Generally

Although Colorado courts have not done so, some courts have recognized the privilege of "self-critical evaluation" or "self-critical analysis." The privilege is based on the notion that "disclosure of documents reflecting candid self-examination will deter or suppress socially useful investigations and evaluations or compliance with the law." Wells Dairy, Inc. v. Am. Indus. Refrigeration, Inc., 690 N.W.2d 38, 49 (Iowa 2004) (internal quotations and citations omitted); see also Hardy v. New York News, Inc., 114 F.R.D. 633, 640 (S.D.N.Y. 1987); Mitchell v. Fishbein, 227 F.R.D. 239, 252 (S.D.N.Y. 2005). Where recognized, parties have invoked it and courts have applied it to prevent the disclosure of confidential self-evaluative materials when the public interest in promoting such materials outweighs the opposing party's need for disclosure. See Loigman v. Kimmelman, 505 A.2d 958, 963 (N.J. 1986); Note, "The Privilege of Self-Critical Analysis," 96 Harv. L. Rev. 1083, 1099-1100 (1983).

That seminal article in the Harvard Law Review identified three elements necessary for recognition of the privilege. First, the information must result from a self-critical analysis undertaken by the party seeking protection. Second, the public must have a strong interest in preserving the internal free flow of the type of information sought. Third, the information must be of the type whose flow would be curtailed if discovery were allowed. Note, "The Privilege of Self-Critical Analysis," 96 Harv. L. Rev. 1083, 1086 (1983); Combined Commc'ns Corp. v. Public Serv. Co. of Colo., 865 P.2d 893, 898 (Colo. App. 1993) (citing Dowling v. American Haw. Cruises, Inc., 971 F.2d 423 (9th Cir. 1992)); accord Wimer v. Sealand Serv., Inc., 1997 U.S. Dist. LEXIS 9475, at *3 (S.D.N.Y. July 3, 1997); Mitchell, 227 F.R.D. at 252. The Ninth Circuit suggested that a fourth requirement should be added, namely, that the document at issue was prepared with the expectation that it would be kept confidential and has, in fact, been kept confidential. Dowling, 971 F.2d at 426 (discussing but declining to apply the self-critical analysis privilege).

The privilege has been applied in limited circumstances, including:

• Self-critical evaluations of patient-care procedures at a medical facility, including medical peer review. Gillman v. United States, 53 F.R.D. 316, 318-19 (S.D.N.Y. 1971); Bredice v. Doctors Hosp., Inc., 50 F.R.D.

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