Block Island Fishing, Inc.
Filing
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Judge Allison D. Burroughs: MEMORANDUM AND ORDER entered. Accordingly, Partrederiets Motion for a Protective Order [ECF No. 56 ] is GRANTED, subject to the limitations set forth in this order. Partrederiet shall file a status report within ten days. SO ORDERED.(McDonagh, Christina)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
In re: BLOCK ISLAND FISHING, INC., for
Exoneration from or Limitation of Liability.
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Civil Action No. 16-cv-10043-ADB
MEMORANDUM AND ORDER GRANTING
MOTION FOR PROTECTIVE ORDER
BURROUGHS, D.J.
This case concerns a collision between a lobster fishing vessel, the F/V HEDY
BRENNA, and a tanker, the BW GDF SUEZ BOSTON, on July 3, 2015. Block Island Fishing,
Inc., which owns the F/V HEDY BRENNA, filed a complaint seeking exoneration or limitation
of liability on January 12, 2016. [ECF No. 2]. Claimant Partrederiet BW Gas GDF Suez Emt Da
(“Partrederiet”) is the registered owner of BW GDF SUEZ BOSTON. [ECF No. 21 at 4]. Now
before the Court is Partrederiet’s Motion for a Protective Order [ECF No. 56] seeking to limit
deposition testimony concerning Partrederiet’s review and analysis of the collision based on the
self-critical analysis privilege. For the reasons set forth below, the motion is granted.
A.
The Self-Critical Analysis Privilege
The self-critical analysis privilege is not yet clearly established in the First Circuit or
elsewhere, but “a number of federal courts have recognized that self-critical analyses are
generally privileged and not subject to discovery.” Tice v. Am. Airlines, Inc., 192 F.R.D. 270,
272 (N.D. Ill. 2000) (citing cases); see also Coates v. Johnson & Johnson, 756 F.2d 524, 551 (7th
Cir. 1985) (recognizing “prevailing view” that “self-critical portions of affirmative action plans
are privileged and not subject to discovery”). Within the First Circuit, one district court has
applied the privilege to protect certain material from discovery, see O’Connor v. Chrysler Corp.,
86 F.R.D. 211, 218 (D. Mass. 1980), while in other cases the court found that the privilege was
inapplicable on the facts at issue, and thus did not reach the question of whether the privilege
exists. See, e.g., Reyes-Santiago v. JetBlue Airways Corp., 932 F. Supp. 2d 291, 297 (D.P.R.
2013); Westernbank P.R. v. Kachkar, No. CV 07-1606 (ADC/BJM), 2009 WL 10681125, at *3
(D.P.R. Apr. 7, 2009); Whittingham v. Amherst Coll., 164 F.R.D. 124, 130 (D. Mass. 1995).
The self-critical analysis privilege, also known as the self-evaluative privilege, “is
designed to protect the opinions and recommendations of corporate employees engaged in the
process of critical self-evaluation of the company’s policies for the purpose of improving health
and safety.” Felder v. Wash. Metro. Area Transit Auth., 153 F. Supp. 3d 221, 224–25 (D.D.C.
2015). “The privilege seeks to encourage candid self-criticism,” and “‘prevent[s] a ‘chilling’
effect on self-analysis and self-evaluation prepared for the purpose of protecting the public by
instituting practices assuring safer operations.’” Id. at 225 (quoting Granger v. Nat’l R.R.
Passenger Corp., 116 F.R.D. 507, 509 (E.D. Pa. 1987)). If these types of analyses were subject to
disclosure, it would “almost inevitably . . . result in some cramping of the investigative process,
simply because the incentives for any institution to engage in self-evaluative investigation pale
considerably with the knowledge that the results may be used against it.” O’Connor, 86 F.R.D. at
217–18. Thus, the “reasoning behind this approach is that the ultimate benefit to others from this
critical analysis of the . . . [accident] far outweighs any benefits from disclosure.” Bradley v.
Melroe Co., 141 F.R.D. 1, 3 (D.D.C. 1992). 1
1
Some courts have interpreted a 1990 Supreme Court decision as casting doubt on the viability
of the self-critical analysis privilege. See Univ. of Pennsylvania v. EEOC, 493 U.S. 182, 188–89
(1990). In that case, the court refused to recognize a peer-review privilege that would have
protected materials concerning a university’s tenure decisions where the EEOC was investigating
charges of gender and racial discrimination. Id. at 185, 189. Some courts have described
Pennsylvania as “implicitly reject[ing] the rationale for a self-evaluation privilege” because both
2
The O’Connor court identified four “potential guideposts” for the application of the selfcritical analysis privilege:
(1) materials protected have generally been those prepared for mandatory
governmental reports; (2) only subjective, evaluative materials have been
protected; (3) objective data in those same reports have not been protected; and (4)
in sensitivity to plaintiffs’ need for such materials, courts have denied discovery
only where the policy favoring exclusion has clearly outweighed plaintiffs’ need.
O’Connor, 86 F.R.D. at 217 (quoting Webb v. Westinghouse Elec. Corp., 81 F.R.D. 431, 434
(E.D. Pa. 1978)). In the years since O’Connor was decided, however, a different four-factor test
appears to have been more frequently applied by district courts across the country. See 2
McLaughlin on Class Actions § 11:11 (14th ed.). That test, which is based in part on factors
identified by the Ninth Circuit in Dowling v. Am. Haw. Cruises, Inc., 971 F.2d 423, 426 (9th Cir.
1992)), is as follows: (1) “the information must result from a critical self-analysis undertaken by
the party seeking protection; (2) the public must have a strong interest in preserving the free flow
of the type of information sought;” (3) “the information must be of the type whose flow would
be curtailed if discovery were allowed;” and (4) the document at issue must have been “prepared
with the expectation that it would be kept confidential.” Reid v. Lockheed Martin Aeronautics
Co., 199 F.R.D. 379, 386 (N.D. Ga. 2001) (quoting Dowling, 971 F.2d at 426). 2 The court in
privileges are based on the “assertion that candid appraisals of organizational management and
personnel practices will be hindered to the detriment of the public interest if such information is
subject to disclosure in litigation.” Roberts v. Hunt, 187 F.R.D. 71, 75 (W.D.N.Y. 1999). The
self-critical analysis privilege, however, is ordinarily only recognized where protecting an
organization’s self-analysis could further a specific, important public policy goal, such as
implementing affirmative action programs or improving safety procedures. Thus, it is not
apparent that Pennsylvania completely forecloses the existence of the privilege. See Abbott v.
Harris Publ’ns, No. 97-cv-7648 (JSM), 1999 WL 549002, at *2 (S.D.N.Y. July 28, 1999)
(explaining that, post-Pennsylvania, the party seeking to invoke the self-critical analysis
privilege “bears a heavy burden of establishing that public policy strongly favors the type of
[internal] review at issue and that disclosure in the course of discovery will have a substantial
chilling effect on the willingness of parties to engage in such [internal] reviews”).
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The U.S. District Court for the District of Columbia employs yet another test: “(1) the
document must be a critique submitted as part of a mandatory government report; and (2) the
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Tice explained that the first test, as employed in O’Connor, is used to determine whether reports
in an employment discrimination case are protected by the privilege, while the second test, as
described in Reid, is employed in personal injury or tort cases. Tice, 192 F.R.D. at 272–73. Other
courts have not necessarily recognized that distinction, however. See Roberts v. Carrier Corp.,
107 F.R.D. 678, 684 (N.D. Ind. 1985) (applying O’Connor factors in personal injury case); see
also Adams v. Pinole Point Steel Co., No. C-92-1962 MHP, 1994 WL 442725, at *2 (N.D. Cal.
May 18, 1994) (explaining that courts have “enunciated various tests, all of which are similar to
the test set forth in Dowling”).
Even where the self-critical analysis privilege applies, it protects “only subjective
impressions and opinions, not objective facts.” Reichhold Chems., Inc. v. Textron, Inc., 157
F.R.D. 522, 526 (N.D. Fla. 1994). See also Felder, 153 F. Supp. 3d at 225 (The self-critical
analysis privilege “does not protect purely factual material appearing alongside self-critical
analysis.”).
B.
Application
Regardless of the precise formulation of the test to be applied, the internal review at issue
here is the type of evaluation that the self-critical analysis privilege seeks to protect. 3
Partrederiet’s internal investigation was completed after the accident occurred, and the purpose
document must have been prepared retrospectively as a component of a post-accident
evaluation.” Felder, 153 F. Supp. 3d at 225. Furthermore, courts generally only apply the
privilege in “cases involving public health or safety.” Id. (quoting Wade v. Wash. Metro. Area
Transit Auth., No. 01–cv–334, 2006 WL 890679, at *5 (D.D.C. 2006)).
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Although the Court need not make a determination as to the standard to be applied, based on
the facts of this case, the Court believes that the following are the appropriate factors to consider:
(1) the document must be a critique submitted as part of a mandatory government report; (2) the
document must have been prepared retrospectively as a component of a post-accident evaluation;
(3) only subjective, evaluative materials are protected, and objective data is not protected; (4) the
public must have a strong interest in preserving the free flow of the type of information sought;
and (5) the document at issue must have been prepared with the expectation that it would be kept
confidential.
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was to pinpoint the root causes of the accident and to identify corresponding corrective actions
and preventative measures that Partrederiet can take to avoid future incidents. Further,
Partrederiet asserts that its investigation was required by an international treaty, the International
Convention for Safety of Life at Sea 1974. In addition, Partrederiet represents that it has
disclosed all the objective information and facts generated by its investigation, such as data from
the BW GDF SUEZ BOSTON’s Voyage Data Recorder, and has withheld only the self-analysis
portions of its investigative report.
Several cases have recognized that the rationale for applying the self-critical analysis
privilege is especially compelling where a post-accident safety review is concerned. For
example, the court in Granger considered whether the privilege should apply to an internal postaccident review prepared by an investigation committee after an Amtrak electrician was injured
at a maintenance facility. Granger, 116 F.R.D. at 508. The court determined that the sections of
the report titled “Accident Analysis” and “Committee Recommendations” were protected by the
self-critical analysis privilege, because “one of the primary purposes of the doctrine is to prevent
a chilling effect on self-analysis and self-evaluation prepared for the purpose of protecting the
public by instituting practices assuring safer operations.” Id. at 510. The court explained that
“[t]here is no question that the public has an interest in the institution of practices assuring safer
operations of railroads,” and reasoned that the “production of these portions of the report would
tend to hamper honest, candid self-evaluation geared toward the prevention of future accidents.”
Id. Later, in Dowling, the Ninth Circuit quoted from Granger and noted that “[w]e do not
disagree with this analysis.” Dowling, 971 F.2d at 427. The court drew a distinction, however,
between Dowling, which involved a voluntary, routine safety review conducted by a cruise ship
operator, and a post-incident investigation, explaining that “the difference between pre-accident
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safety reviews and post-accident investigations is an important one,” since the “candid analysis
of the causes of [a particular] accident[] is more likely to be stifled by a disclosure requirement
than would the routine review of safety concerns.” Id. at 425–27. The court also noted that the
Federal Rules of Evidence “bar only evidence of subsequent remedial measures to prove
negligence,” based on the social policy rationale “of encouraging people to take, or at least not
discouraging them from taking, steps in furtherance of added safety.” Id. at 427 (citing Fed. R.
Evid. 407 and quoting advisory committee note). Along the same lines, a federal court in
Pennsylvania determined that a post-accident report generated by the Navy was also protected
from disclosure by the privilege. See In re Petition of McAllister Towing & Transp. Co., No. 02cv-858, 2004 WL 1240667, at *1 (E.D. Pa. May 7, 2004) (explaining that “the entire goal of the
[internal] investigative process is to promote safety and to eliminate the possibility of a similar
accident occurring in the future,” which is “the basis for the [self-critical analysis] privilege, in
the first place,” and noting that the “privilege is based upon the concern that disclosure of
documents reflecting candid self-examination will deter or suppress socially useful investigations
and evaluations or compliance with the law or with professional standards” (internal quotation
marks and citation omitted)). Accordingly, the self-critical analysis privilege should apply to the
evaluation at issue here.
Block Island Fishing argues that Partrederiet has not demonstrated that it will suffer
actual harm from disclosing the investigative report. As discussed supra, however, the problem
that the self-critical analysis privilege is meant to address is the disincentive against conducting
future safety reviews if such material were required to be disclosed, rather than any immediate
harm that the company would suffer from disclosing the report in this specific instance. Block
Island Fishing also contends that, because Partrederiet is legally required to conduct post-
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accident evaluations, disclosure of the report will not prevent Partrederiet from performing
similar evaluations in the future. The fact that Partrederiet must continue to conduct these
reviews, however, does not necessarily mean that it will have the incentive to be particularly
thorough or candid in those evaluations. As the court in Webb recognized, the self-critical
analysis privilege enhances compliance even where a report is legally required, because a
company “must be encouraged to be candid and forthright in assessing” the practices at issue.
Webb, 81 F.R.D. at 433; see also O’Connor, 86 F.R.D. at 217 (relying on Webb factors,
including that report was prepared to satisfy government requirement).
Block Island Fishing also argues that the report should be disclosed because Partrederiet
has not demonstrated that it was prepared with the expectation that it would be kept confidential,
nor has it indicated that it has actually been kept confidential. See Dowling, 971 F.2d at 426
(recognizing “general proviso” that “no document will be accorded a privilege unless it was
prepared with the expectation that it would be kept confidential, and has in fact been kept
confidential”). The Court agrees that Partrederiet must demonstrate it has satisfied this
requirement, so it shall file a status report within ten days of this order explaining whether the
report was prepared with the expectation of confidentiality and whether it has been kept
confidential. Given that the law concerning the self-critical analysis privilege is not wellestablished, the Court will not require Partrederiet to divulge the report merely because its initial
brief does not make clear whether the report meets this requirement.
Lastly, Block Island Fishing asserts that Partrederiet’s invocation of the privilege is
overbroad because Partrederiet has not disclosed documentation concerning the specific facts
and materials that were considered in the post-accident review. The Court agrees that Partrederiet
must turn over these components of its report and allow its Rule 30(b)(6) deponent to testify
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about all facts and observations considered in the investigation. See Granger, 116 F.R.D. at 510
(holding that portions of report titled “Cause” and “Contributing Factors” were discoverable). In
addition, Block Island Fishing asserts that the privilege should only apply to the deposition
testimony of Helge Drange, Partrederiet’s designated Rule 30(b)(6) deponent, and should not
preclude Block Island Fishing from seeking the testimony of other deponents concerning topics
such as the cause of the accident. The Court agrees that this limitation is appropriate. See
Hoffman v. United Telecomm., Inc., 117 F.R.D. 440, 442–43 (D. Kan. 1987) (holding that selfcritical analysis privilege did not prevent plaintiff from seeking testimony concerning witness’s
personal opinion). Thus, Block Island Fishing may ask questions concerning the deponents’
personal opinions or observations about the accident, but may not request information about the
evaluative portions of the report at issue.
C.
Conclusion
Accordingly, Partrederiet’s Motion for a Protective Order [ECF No. 56] is GRANTED,
subject to the limitations set forth in this order. Partrederiet shall file a status report within ten
days.
SO ORDERED.
June 4, 2018
/s/ Allison D. Burroughs
ALLISON D. BURROUGHS
U.S. DISTRICT JUDGE
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