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doctrine (commonly referred to as “Rule 407”^13 ), which, in
practice, would deem self-critical materials inadmissible at trial
yet still discoverable. This paradigm strikes a proper balance
between the patient’s right to uncover the truth—regardless of
any intention to sue—and the public interest in encouraging
constant and candid assessments of hospital procedures.
Incidentally, this may even further the PSA’s objective of
limiting adverse health outcomes.
I. THE DEVELOPMENT OF THE SELF-CRITICAL ANALYSIS
PRIVILEGE
Privileges “reflect societal choices that certain relationships
(such as those between husbands and wives) or activities (such
as seeking legal or medical advice) should be valued above
others.”^14 Understood another way, privileges are the product of
a principled determination by the privilege creator (typically a
legislature or court) that the public would benefit from certain
information remaining confidential. As one author succinctly
stated, “[S]ociety needs privileges because in their absence,
individuals will be discouraged from engaging in certain socially
desirable behavior.”^15 A privilege can thus be regarded as a type
of public interest carve-out to the discovery process, which
otherwise allows for the disclosure of all potentially relevant
material.^16
(^13) FED. R. EVID. 407.
(^14) Pam Jenoff, The Case for Candor: Application of the Self-Critical
Analysis Privilege to Corporate Diversity Initiatives, 76 BROOK. L. REV. 569,
576 (2011).
(^15) Id. at 577. For example, without an attorney-client privilege, a client
may be reluctant to speak frankly with her lawyer, and without a doctor-
patient privilege, a patient may be reluctant to inform her physician of
crucial, yet possibly embarrassing, details of her personal health. Society
should (and does) encourage these behaviors, which, respectively, promote
justice and improve health outcomes.
(^16) See, e.g., FED. R. CIV. P. 26(b)(1) (“Parties may obtain discovery
regarding any nonprivileged matter that is relevant to any party’s claim or
defense.... Relevant information need not be admissible at the trial if the
discovery appears reasonably calculated to lead to the discovery of admissible
evidence.”). Most states have similarly expansive rules. See, e.g., N.Y.