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speak frankly if they know their own self-critical analyses could
be discovered by outsiders, or worse, used as evidence against
them in a future lawsuit.^21 Therefore, the argument goes, the
contents of these discussions must remain confidential.
The belief that a party should not be compelled to disclose
its self-evaluative material is not novel. Such a rationale is
embedded in two well-recognized and existing protections: (1)
the attorney-client privilege and (2) the work-product doctrine.
The attorney-client privilege ensures the “full and frank
communication between attorneys and their clients and thereby
promote[s] broader public interests in the observance of law and
administration of justice.”^22 A broad attorney-client privilege
thus encourages a form of self-critical analysis.^23 The work-
product doctrine, articulated in Hickman v. Taylor^24 and now
codified in Rule 26(b)(3) of the Federal Rules of Civil
Procedure, prevents a party from discovering documents that
were prepared in “anticipation of litigation.”^25 The doctrine
promotes the adversarial system, and more generally ensures
fairness, by preventing a party from unjustly benefiting from the
hard work of its adversary.^26 Importantly, the work-product
(^21) See generally 1 DAVID M. GREENWALD ET AL., TESTIMONIAL
PRIVILEGES § 1:120 (3d ed. 2005 & Supp. 2012).
(^22) Upjohn Co. v. United States, 449 U.S. 383, 389 (1981). In Upjohn,
the Supreme Court recognized that robust attorney-client privilege encourages
corporate entities to investigate and root out possible illegal activities within
their own ranks.
(^23) See, e.g., Stuart E. Rickerson, The Privilege of Self-Critical Analysis:
How to Raise It and Use It, 58 DEF. COUNS. J. 504, 507 (1991) (stating that
Upjohn “could have become the cornerstone of the critical self-examination
privilege”). An implicit assumption in both attorney-client and self-critical
analysis privilege is what might be called the proactive “nip it in the bud”
approach, where reliance on forward-looking internal compliance approaches
produces higher degrees of conformity with the law and is therefore more
efficient and desirable than post hoc deterrents and remedies through the
imposition of civil or criminal liability.
(^24) Hickman v. Taylor, 329 U.S. 495 (1947).
(^25) FED. R. CIV. P. 26(b)(3)(A).
(^26) Sherman L. Cohn, The Work-Product Doctrine: Protection, Not
Privilege, 71 GEO. L.J. 917, 943 (1983). The doctrine serves a more
forward-thinking goal as well: the quality of attorney work product would
suffer if such material were easily obtainable by adversaries. See id. at 919–