CODIFYING COMMON LAW 581
While many privileges are so deeply rooted in our culture
that few would question their necessity—the privilege against
self-incrimination or the attorney-client privilege, for instance—
all privileges are controversial in that they prevent a party from
uncovering facts likely crucial to its case. As Justice Scalia
noted, “[J]ustice... is severely harmed by contravention of
‘the fundamental principle that “the public has a right to every
man’s evidence.”’”^17 Privileges, the Supreme Court famously
admonished, “are not lightly created nor expansively construed,
for they are in derogation of the search for truth.”^18 In sum,
privileges are unabashedly bold vehicles for policymaking.^19
A. The Doctrinal Roots of the Self-Critical Analysis PrivilegeThe self-critical analysis privilege is rooted in the belief that
in certain situations, public policy demands that institutions
engage in evaluative internal investigations and discussions in
order to pinpoint—and hopefully correct—recurring problems or
prior mistakes.^20 Because such discussions likely contain
embarrassing or damaging information, participants may not
C.P.L.R. 3101(a) (MCKINNEY 2005) (“There shall be full disclosure of all
matter material and necessary in the prosecution or defense of an action,
regardless of the burden of proof... .”).
(^17) Jaffee v. Redmond, 518 U.S. 1, 19 (1996) (Scalia, J., dissenting)
(quoting 7 JOHN HENRY WIGMORE, EVIDENCE IN TRIALS AT COMMON LAW
§ 2192 (3d ed. 1940) (quoting Lord Hardwicke)).
(^18) United States v. Nixon, 418 U.S. 683, 710 (1974).
(^19) Because of the extraordinary power that privileges afford, and because
they reflect overarching and often controversial policy decisions, the
secondary question of who has the authority to create a privilege is itself an
important public policy inquiry. Privileges in New York, for example, are
almost entirely a product of statute. New York courts have traditionally
declined to create new privileges. See RICHARD T. FARRELL, PRINCE,
RICHARDSON ON EVIDENCE § 5-101 (11th ed. 1995) (“Efforts have been
made to induce the courts to create privileges in favor of additional classes of
persons, but without success.”).
(^20) See, e.g., Brad Bacon, Note, The Privilege of Self-Critical Analysis:
Encouraging Recognition of the Misunderstood Privilege, 8 KAN J.L. & PUB.
POL’Y 221, 223 (1999) (“The privilege is premised on the rationale that
unimpeded self-criticism serves a social good outweighing the cost of
evidentiary exclusion.”).