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Tuesday, December 24, 2013

Court Rejects the "Self-Critical Analysis" Privilege

If you happen to find yourself in an Evidence classroom at most law schools around the country, chances are that you will hear a professor fret over the erosion of evidentiary privileges that protect certain documents from discovery in a lawsuit.  Indeed, the growth of electronic communications has made it even harder to keep information out of the hands of a third party capable of destroying the privilege. Those law school professors may continue to fret when they read Harris v. One Hope United, Inc.

In Harris, the defendant, One Hope, contracted with the Illinois Department of Children and Family Services (DCFS) to provide services to keep troubled families together. Sadly, a seven-month old girl under One Hope’s care died. Attorneys for the Public Guardian deposed the chief executive of One Hope, who revealed the existence of a "Priority Review" report. This report examined whether One Hope’s services were professionally sound, identified problems in its delivery of services, and evaluated whether the outcome was successful. One Hope refused to produce the report in discovery, claiming it was protected by the self-critical analysis privilege, and continued to resist even after being ordered by the court to produce the report.

The privilege claimed by One Hope has been applied by federal and state courts around the country, and protects from discovery in a lawsuit any information that was derived from a self-critical analysis.  The privilege usually applies to reports created by an organization (including government entities) in the wake of an accident or other incident when the organization expects the report to remain confidential. The policy behind this privilege is "to encourage companies to engage in candid and often times critical internal investigations of their own possible wrongdoings."

On appeal, the appellate court rejected One Hope's claim that the report was protected by the "self-critical analysis" privilege.  Although the court recognized that the intent of this privilege was to encourage organizations to examine and rectify their wrongdoings, it noted that the Illinois Supreme Court disfavored judicial creation of evidentiary privileges. It concluded that since there was no precedent for the privilege in Illinois law, it could not recognize it.

So, what does this mean for local governments?  Based on this ruling, government officials and employees should be careful what they write in an internal memo because it is more likely than not that all of an entity's internal correspondence, even if it was meant to be confidential, will come out in a lawsuit through discovery. When an organization makes a mistake, it should be careful about how it deals with and should also avoid creating detailed self-critical reports that might clearly show fault.

To learn more about more about what can be done to avoid lawsuits, check out Ancel Glink’s resource page at http://www.ancelglink.com/Resource. Also, stay tuned for Ancel Glink’s litigation website, coming in 2014, which will be full of resources to help your organization protect itself from liability.

Post Authored by Matt DiCianni, Ancel Glink


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