CODIFYING COMMON LAW 587
deferential “abuse of discretion” standard governing appeals of
trial court discovery rulings,^49 as well as parties’ inability in
many jurisdictions to appeal discovery rulings until a “final”
judgment, have resulted in a dearth of guidance from appellate
courts, which, in turn, has created more unpredictability.^50 As a
result, “some jurisdictions have cases with conflicting outcomes
that are barely recognizable.”^51 Many courts have also simply
rejected the privilege outright.^52
The privilege’s lack of coherence has forced observers to
grapple with the basic question of whether the self-critical
analysis should be an “absolute” relational privilege of the
attorney-client or doctor-patient type or rather an equitable tool
of trial judges to ensure fairness during discovery and thus more
similar to protections like the work-product doctrine. Despite the
inconsistent application of the privilege, one influential Harvard
Law Review Note discerned three overarching principles to the
application of the privilege in certain scenarios. First, the
privilege seeks to prevent the “dual chilling effect” discovery
would unleash: “the direct chilling effect on the institutional or
individual self-analyst... [which] operates to discourage the
analyst from investigating thoroughly and frankly or even from
investigating at all,”^53 as well as the chilling effect upon the
data-“supplier,” which “discourage[s] individuals from coming
federal rule is unsettled.’” (quoting Wm. T. Thompson Co. v. Gen. Nutrition
Corp., 671 F.2d 100, 104 (3d Cir. 1982))).
(^49) See, e.g., Dowling v. Am. Haw. Cruises, 971 F.2d 423, 425 (9th Cir.
1992).
(^50) See GREENWALD ET AL., supra note 21, § 1:119.
(^51) Id.
(^52) Id. (“The privilege is defined differently in different jurisdictions, but
in most cases the courts have found that the privilege did not apply to facts
before them.”).
(^53) The Privilege of Self-Critical Analysis, supra note 44, at 1091–92.
Fear of lawsuits, however, is not the only cause for hesitancy on the
part of self-analysts. If an individual self-analyst is asked by his
superiors to conduct an internal analysis, the individual may temper
his criticism out of a fear that reprisals will result if the analysis
ultimately leads to liability or adverse publicity for the employer.
Id. at 1092.