Opinion
C.A. No.: 99C-02-246-JOH
Submitted: October 16, 2000
Decided: November 2, 2000
Upon Motion of Plaintiffs to Compel Discovery GRANTED in part, DENIED in part
Frederick W. Iobst, Esq., of Young, Conaway, Stargatt Taylor, LLP, attorney for plaintiffs
Donald M. Ransom, Esq., of Casarino, Christman Shalk, attorney for defendants
MEMORANDUM OPINION
Plaintiffs have moved to compel discovery of redacted portions of defendant Werner Enterprises' safety committee minutes. Werner has asserted two privileges in resisting plaintiffs' request. The first is that several redacted portions contain reserve information. The second asserted privilege is self-critical analysis.
Plaintiff Robert Wealton was driving on I-95 when a Werner truck collided with his vehicle. In addition to the respondent superior claims made against the driver, defendant Donald Courtney, the plaintiffs have made claims against Werner. Some of the grounds overlap, in a sense, such as Courtney's speed, Werner's admonitions to its drivers about speed, the adequacy and use or non-use of the mirrors on Courtney's truck and Werner's knowledge of any defects in the mirror system.
Plaintiffs argue that the redacted portions of the minutes provide discoverable material related to their claims. Part of their action against the defendants is for punitive damages which, of course, is founded on allegations of reckless conduct. The redacted materials, they argue, relate to these allegations, too.
DISCUSSION A
Reserves are funds set aside for payment of future claims. Reserve information usually has limited relevance, little probability of leading to admissible evidence and does not establish coverage under an insurance policy. In Hoechst Celanese Corp. v. National Union, this Court held reserves are accounting entries to set aside money for any future liabilities and are not discoverable. Reserves are a business decision to create financial stability within a company. Reserves are not the issue of this case and will not lead to the possibility of admissible evidence. They are nothing more than money put aside to pay for any future liabilities and bear no relevance to the issues in the case at hand. The reserves are not discoverable and should remain redacted.
National Union Fire Ins. Co. of Pittsburgh, Pa v. Stauffer Chemical Co., Del.Super., 558 A.2d 1091, 1097-98 (1989).
Id.
Del.Supr., 623 A.2d 1099(1991).
Id. at 1109.
B
The defendants assert other redacted portions are not discoverable under the self-critical analysis privilege, or otherwise referred to by some courts as the self-evaluation privilege. That privilege is designed to encourage confidential self-analysis and self-criticism. Courts have been reluctant to apply the privilege and it is only applied in extraordinary circumstances. The self-critical analysis defense to discovery has usually, but not always, been limited to cases where the documents requested are reports required to be filed with the government. The basis for this defense is to shield from discovery certain subjective material constituting self-critical analysis of employers' equal employment opportunity goals and policies. This privilege should be limited carefully. Webb outlines the guidelines for the application of the self-critical analysis:
Federal Trade Commission v. TRW, Inc., U.S.App. D.C., 628 F.2d 207 (1980).
Id at 210.
Bredice v. Doctors Hospital, D.D.C., 50 F.R.D. 249, 251 (1970).
Webb v. Westinghouse Electric Corp., E.D. Pa., F.R.D. 431, 433 (1978).
Id.
First, materials protected have generally been those prepared for mandatory governmental reports. Second, only subjective, evaluative materials have been protected; objective data contained in those same reports in no case have been protected. Finally, courts have been sensitive to the need of the plaintiffs for such materials, and have denied discovery only where the policy favoring exclusion of the materials clearly outweighed plaintiffs need.
Id. at 434.
The Delaware Uniform Rules of Evidence states about privileges:
Except as otherwise provided by Constitution or statute, or by court decision, or by these or other rules of court, no person has a privilege to: (1) Refuse to be a witness; (2) Refuse to disclose any matter; (3) Refuse to produce any object or writing; or (4) Prevent another from being a witness or disclosing any matter or producing any object or writing.
None of the privileges spelled out in Article V of the Rules of Evidence create a self-critical/self-analysis privilege. Nor does such a privilege exist in any Delaware statute, except for certain medical evaluations, or in any constitutional provision. That means, the source of the privilege in Delaware, by D.R.E. 501. must be by court decision.
The first decision to discuss the self-analysis privilege is Register v. Wilmington Medical Center, Inc. In that case, the plaintiff, in a medical negligence case, sought to introduce at trial evaluation reports of the resident who had delivered her baby and who it was claimed committed medical negligence. The trial court ruled the reports as inadmissible. The Supreme Court held that ruling to be erroneous. In language applicable to these plaintiffs' reasons for seeking Werner's redacted minutes, the Supreme Court stated:
Del.Supr., 377 A.2d 8 (1977).
Evidence as to the Center's responsibility for a resident's conduct may be admitted on at least two theories: it may be received under generally accepted agency principles [citation omitted], or it may be received on the issue of whether the Center negligently utilized or failed to adequately supervise a resident who did not meet (the standard of care) in performing the task to which he was assigned.
Id. at 10.
In a footnote later, the court said:
Defendant argues that the reports are inadmissible on the grounds of confidentiality. Disclosure, defendant contends, would chill the frankness of the evaluative process which is essential to the success of a critical learning program. That is an appealing argument but we are unaware of any principle in our law which would make the reports privileged or subject to nondisclosure or use in this action, which seeks redress for alleged malpractice by the physician who is the subject of the reports.
Id. at 11.
Later, in a Chancery case, the defendant specifically asserted the self-evaluation privilege in resisting the production of certain documents. The Court doubted Delaware recognized such a privilege. But, even if it existed, the Court declined to employ it to allow the defendant's non-production.
Artesian Water Co. v. New Castle Co., Del.Ch., C.A. No. 5106, Marvel, C. (April 9, 1981).
In a more recent Chancery case, the defendant corporation asserted the self-critical analysis privilege. The Court noted that Register and Artesian Water were the only two cases until that case to discuss it. The plaintiff sought inspection of several corporate documents, including some internal investigative reports.
Grimes v. DSC Communications Corp., Del.Ch., 724 A.2d 561, 570 (1998).
The Grimes court noted the lack of Delaware case authority for such a privilege. It did, however, recognize that those courts, in other jurisdictions which recognized it, used a four-factor test to determine whether it can be applied. Those factors are: (1) the information in question results from a self-critical analysis, (2) the information was intended to be and has been kept confidential, (3) the public has a strong interest in preserving the free flow of the type of information sought, and (4) the free flow of that information would be curtailed, if the information were discoverable.
Id.
Many of those courts applying these factors usually dealt, as noted, with reports to government agencies. There is, therefore, an overlay to its application even before these factors are considered. The reports the plaintiffs here are seeking were not ones required by or sent to any governmental agency.
Werner has supplied the redacted portions of these minutes to be examined in camera, which the Court has done. To the extent the minutes at times contain an admonition to keep them confidential and do analyze accidents, tests one and two are met. But, at the same time, they contain information about accidents predating the one at issue here which may be beneficial to plaintiffs and which relate, as far as discovery goes, to matters on which their claims are based. They fall within the two categories discussed in Register, namely, respondent superior and direct liability, and the public, the traveling public, has a strong interest in access to that information.
It is unlikely companies such as Werner would cease reviewing accidents and stop their risk management programs, if such information were discoverable. They have either the desire to have their drivers drive safely for all sorts of reasons and/or are concerned with the insurance premium and economic impact of unsafe drivers and driving.
In short, the relevancy of the redacted portions of the minutes, at least at this stage of the proceedings, is too great to allow Werner to successfully assert a privilege no court in Delaware has even recognized. Except, therefore, for any reserve information, the redacted portions of the minutes shall be provided forthwith to plaintiffs.
CONCLUSION
For the reasons stated herein, plaintiffs' motion to compel is DENIED in part and GRANTED in part.
IT IS SO ORDERED.