CODIFYING COMMON LAW 585
process, without a showing of exceptional necessity,
would result in terminating such deliberations.
Constructive professional criticism cannot occur in an
atmosphere of apprehension that one doctor’s suggestion
will be used as a denunciation of a colleague’s conduct in
a malpractice suit.^38
The court therefore reasoned that there was an
“overwhelming public interest” in keeping these staff meetings
confidential “so that the flow of ideas and advice [could]
continue unimpeded.”^39 The court further noted that “what
someone... at a subsequent date thought of these acts or
omissions is not relevant to the case.”^40 For both of these
reasons, the court concluded that the meetings “are entitled to a
qualified privilege.”^41
C. Doctrinal Disputes: How Far Should the Privilege Extend?Bredice predated Federal Rule of Evidence 501 (promulgated
in 1974), which created a new framework for federal courts to
determine when to recognize new privileges.^42 While one could
(^38) Id.
(^39) Id. at 251.
(^40) Id. (alteration in original) (quoting Richards v. Me. Cent. R.R., 21
F.R.D. 590 (D. Me. 1957)) (internal quotation marks omitted). This
contention is highly questionable. FED. R. CIV. P. 26(b) allows for the
discovery of materials “reasonably calculated to lead to the discovery of
admissible evidence.” Documents compiled in the wake of an adverse patient
occurrence are almost certain to include relevant evidence, particularly the
identity of witnesses, and will likely serve, in the words of James F.
Flanagan, as a crucial “‘road map’ of the events” for the discoverer. James
F. Flanagan, Rejecting a General Privilege for Self-Critical Analyses, 51
GEO. WASH. L. REV. 551, 558 (1983). “Any evaluation of the self-critical
report... must start with the fact that it is undeniably relevant and of
assistance in resolving the case.” Id.
(^41) Bredice, 50 F.R.D. at 251.
(^42) See FED. R. EVID. 501 (“The common law—as interpreted by United
States courts in the light of reason and experience—governs a claim of
privilege unless any of the following provides otherwise: the United States
Constitution; a federal statute; or rules prescribed by the Supreme Court. But
in a civil case, state law governs privilege regarding a claim or defense for