In Re Air Crash at Charlotte, Nc on July 2, 1994
ORDER
This mаtter is before the court upon plaintiffs’ motion to compel production from defendant U.S. Air, Inc. (“U.SAir”). U.S. Air asserts a variety of privileges regarding the documents in dispute. Oral argument was heard on the request on September 19,1995. At the conclusion of the argument, the cоurt took the matter under advisement and directed defendant to furnish the court with a privilege log. Additional argument was heard by way of a telephone conference call on October 5, during which the court directed defendants to file all of the disputed documents with the court for its in camera review. The court then received additional briefing on the various privileges that had been asserted and conducted a final telephone conference call on October 19, 1995. For the reasons which follow, the motion to compel is granted in part and denied in part.
At issue in this motion are sixty-two documents prepared by, or at the request of, defendant U.S. Air. As set out in detail in the privilege log on file with the clerk in this case, U.S. Air contends that all sixty-two documents are protected by one or mоre of three privileges: the attorney-client privilege, the work-produet privilege, and the self-critical evaluation privilege. As to most of the documents, more than one privilege is asserted.
As noted above, both parties agree on the substantive law of attorney-client and work-product privilege. Thus, for the documents for which one or both of these privileges is asserted, the court’s task has been limited to a review of the documents to determine if they fall within the protection of either privilege. After its initial review of the documents, the court determined that it had sufficient information to. determine the applicability of these two privilegеs as to all documents except for documents sixty-one
After receiving this information, the court now concludes that all documents except for documents 3, 4, 5, 20, 21, and 28 are protected by either the attorney-client or work-product privilege, or both. Accordingly, the court will deny thе request for production with respect to these documents. The court will require these documents to remain filed with the clerk, under seal, so they will be available to the Court of Appeals in the event of an appeal after trial in this case.
The remaining documents (Numbers 3, 4, 5, 20, 21, and 28) are more problematic. As to these documents, U.S. Air asserts only the so-called self-critical evaluation privilege. In marked contrast to the position of the parties with regard to the substantive law of the other two privileges, U.S. Air and рlaintiffs take widely-divergent positions on the question of which state law should govern the privilege issue and, secondarily, whether any jurisdiction whose laws potentially apply to this litigation recognizes the self-critical evaluation privilege.
U.S. Air contends that the law of South Carolina, the forum state for all eases that have originated in South Carolina or have been transferred here for consolidated pretrial proceedings by the multidistrict litigation panel, should govern the privilege issue. Plaintiffs contend, on the other hand, that because this court will be required to apply the law of the state of North Carolina (the place where the plane crash in question occurred) the court should look to the law of North Carolina to determine whether a self-critical еvaluation privilege should be recognized and applied to the six documents in dispute.
The court, however, finds it unnecessary to decide the troublesome issue of which state’s law should apply, or, alternatively, to what extent the law of either North Carolina or South Carolina would recognize the self-critical evaluation privilege. The court’s review of the documents for which this privilege is asserted yields the conclusion that even if the relevant state recognized the self-critical evaluation privilegе such a privilege would not apply under the circumstances presented here.
As pointed out by plaintiffs in their memorandum of law, the self-critical evaluation privilege is a privilege of recent origin and one that is narrowly applied even in those jurisdictions where it is recognized. As noted by the Ninth Circuit Court of Appeals: “The Supreme Court and the circuit courts have neither definitely denied the existence of such a privilege, nor accepted it and defined its scope. Rather, when confronted with a clаim of the privilege, they have refused on narrow grounds to apply it to the facts before them....”
Dowling v. American Hawaii Cruises, Inc.,
[O]ther courts have generally required that the party asserting the privilege demonstrate that the material to be protected satisfies at least three critеria: ‘first, the information must result from a critical self-analysis undertaken by the party seeking protection; second, the public must have a strong interest in preserving the free flow of the type of information sought; finally, the information must be of the type whose flow would be сurtailed if discovery were allowed.’ Note, The Privilege of Self-Critical Analysis, 96 Harv.L.Rev. 1083, 1086 (1983). To these requirements should be added the general proviso that no document will be accorded a privilege unless it was prepared with the expectation that it would bе kept confidential, and has in fact been kept confidential. See James F. Flanagan, Rejecting a General Privilege for Self-Critical Analyses, Geo. Wash.L.Rev. 551, 574-576 (1983)....
Id. at 425-426.
In
Dowling
the court refused to apply the privilege to protect voluntary routine pre-
[T]hat information may reveal not only what the сompany knew of the condition, but whether it regarded it as dangerous, whether it assigned someone to repair the condition, what that person did,.whether the company typically responded swiftly and effectively to hazardous conditions or allowed them to persist, and so on..,. A rule that manufacturers’ reviews of the safety of their products are privileged from discovery would place a nearly insurmountable barrier in front of plaintiffs who must prove malice in order to obtain punitive damages in product liability ac-tions____It would also create an enormous obstacle to claims that a manufacturer fraudulently concealed its knowledge of the health hazards of its products.
Where recognized, the self-critical evaluation privilege does not shield objective facts from discovery.
See, e.g., Reichhold Chemicals, Inc. v. Textron, Inc.,
Applying the foregoing principles to the six documents for which U.S. Air seeks to assert this privilege, the court hаs concluded that the documents in dispute do not meet the requirements of the privilege. The most significant stumbling block for U.S. Air is the third factor identified by the court in Dowl-ing, supra: the proponent of the privilege must demonstrate that the information is of the type whose flow would be curtаiled if discovery were allowed.
It is beyond dispute that the airline industry is highly competitive and tightly regulated. Moreover, all airlines have a keen interest in advancing and promoting safety as well as improving service. Airlines are, therefore, likely to conduct internal audits from time to time to insure improved efficiency (both in terms of service and economy), safety and marketability. While disclosure of these audits and other papers to competitors of U.S. Air would certainly deter use of them in the future, disclosure for limited use in litigаtion (such as to prove notice) is unlikely to deter their use.
In addition to these broad reasons for not applying the self-critical evaluation privilege to the six documents in dispute, other more specialized reasons exist. For example, with regard tо the select review panel report (Document # 3) certain “acknowledgements” within the documents suggest that much of this information, if not the entire report, may have been gleaned from or shared with outsiders. Moreover, the “tone” of this document seems to be more oriented towards public relations than a candid self-critical analysis. For these reasons, disclosure of the documents in discovery, subject to a strict protective order, is unlikely to deter preparation of a similar document in the future.
With regаrd to the documents relating to the Phaneuf audit (Documents 4, 5, 20, & 21) it appears that the report itself was made in anticipation of a national aviation safety inspection by the Federal Aviation Administration (FAA). Given its purpose of helping the airline comply with FAA rеgulations, limited disclosure of the report, and documents relating to it, is unlikely to deter preparation of similar reports in the future. With regard to the U.S. Air internal white glove audit (Document # 28) certain passages in the document itself indicate that U.S. Air discussed turning the audit over tо the FAA.
Defendant also has pending two motions for protective order relating to the deposition of Cаptain Timothy Ludwig. The first motion, filed October 16, 1995, seeks to protect from disclosure a conversation between Ludwig and another witness which occurred in counsel’s offices during a break in deposition preparation. Counsel was not, however, a party to thе conversation. The court finds that attorney-client privilege cannot be asserted under these circumstances. Plaintiffs witnesses must respond to these questions. The second or “supplemental” motion, filed October 25, 1995 addresses this conversation as well as various communications with counsel. The latter do appear to be protected by the attorney-client privilege and need not be disclosed.
This ruling shall be binding in future depositions of other witnesses as to the specific conversations and events covered in defendant’s memorandum and by this order. Therefore, no new Local Rule 10.04(C) motion need be made after directing a witness not to answer such inquiries to the extent the asserted privilege is covered by this order.
CONCLUSION
For the foregoing reasons, U.S. Air shall produce Documents 3, 4, 5, 20, 21, & 28 to plaintiffs within ten (10) days from the date of this order. The remaining documents are all protected by either the attorney-client or the work-product privilege and need not be produced. Captain Ludwig shall respond to the inquiries related to his conversation with another witness outside counsel’s presence.
IT IS SO ORDERED.