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question whether a Bredice holding would survive under a Rule
501 regime, many courts have since relied on Bredice to shield
“self-critical” medical peer reviews.^43 In fact, medical peer
reports, along with internal disciplinary investigations^44 and
certain types of equal employment opportunity reports,^45
constitute the three types of documents most often afforded self-
critical analysis protection. The common denominator in all
these cases is a court’s determination that the public interest in
encouraging candid analysis outweighs the litigant’s right to that
information.
Self-critical analysis has been litigated almost entirely at the
trial court level.^46 “Rely[ing] on their inherent power to control
discovery,”^47 trial judges have applied the privilege on an ad hoc
basis, creating what one commentator has referred to as a
“confusing body of case law” with inconsistent results.^48 The
which state law supplies the rule of decision.”); FED. R. EVID. 501 advisory
committee’s note.
(^43) Andel, supra note 29, at 105–06.
(^44) Note, The Privilege of Self-Critical Analysis, 96 HARV. L. REV. 1083,
1088 (1983) (citing, as examples, investigations conducted by railroad
companies following an accident in order to “discipline any culpable
employees and ultimately to improve the railroad’s safety” and police
department investigations “when, following an arrest or shooting, a plaintiff
has either alleged a civil rights violation or asserted a wrongful death
claim”).
(^45) Id. at 1089–90 (describing government contractors’ obligation under
Title VII of the Civil Rights Act of 1964 to file documents that “candid[ly]”
evaluate their own nondiscrimination procedures).
(^46) See Note, Making Sense of Rules of Privilege Under the Structural
(Il)logic of the Federal Rules of Evidence, 105 HARV. L. REV. 1339, 1352
n.74 (1992) [hereinafter Making Sense of Rules of Privilege].
(^47) Flanagan, supra note 40, at 575.
(^48) GREENWALD ET AL., supra note 21, § 1:119. Adding to the confusion,
federal courts often treat privileges as matters of “substance” (rather than
procedure) under an Erie analysis and therefore defer to the privilege law in
the state in which they sit. See, e.g., Lawson v. Fisher-Price, Inc., 191
F.R.D. 381, 382 (D. Vt. 1999) (“[T]his Court applies state law in
determining whether a privilege for self-critical analysis exists.”); see also
Spencer Sav. Bank, SLA v. Excell Mortg. Corp., 960 F. Supp. 835, 836
(D.N.J. 1997) (“[A] federal court may ‘resort to state law analogies for the
development of a federal common law of privileges in instances where the