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forward with relevant information.”^54 The second principle is
that evaluations and opinions in self-critical materials are
protected from discovery but the underlying facts upon which
these opinions are based are not,^55 a distinction which the Note
criticized, observing that “chilling effects of disclosure often
operate on facts as well as evaluations.”^56 The third principle is
that the privilege is not “absolute,” meaning it is applied on a
case-by-case basis, and, even when applied, may be overcome if
a party shows “exceptional need” for the material.^57 The Note
likewise criticized this principle, advocating for a more
absolutist privilege approach, analogous to the attorney-client
context, in which judges decline to “weight the equities” in
determining whether to apply the self-critical analysis privilege.^58
For much the same reason, the Note criticized the “exceptional
need” concession: “The more crucial the material is to the
[discoverer’s] case, the more likely it is to be the type of
material that the privilege was designed to protect.”^59 The Note
therefore criticized courts for “fail[ing] to give the privilege
sufficiently broad application to effectuate the important policies
underlying it.”^60
In contrast, James F. Flanagan, in Rejecting a General
Privilege for Self-Critical Analyses, asserted that self-critical
analysis is not an “evidentiary privilege” and should instead be
regarded as “an exercise in discretionary protection founded in
the court’s power over discovery.”^61 Self-critical analysis is thus
(^54) Id. at 1092. “Without the privilege, as the risk of liability for the
institution increases, the likelihood that witnesses will come forward
decreases.” Id.
(^55) Id. at 1093–94. This same distinction exists in work-product doctrine.
See FED R. CIV. P. 26(b)(3)(B) (protecting “mental impressions, conclusions,
opinions, or legal theories”); Hickman v. Taylor, 329 U.S. 495, 510 (1947)
(recognizing that thoughts are “inviolate” and “outside the arena of
discovery”).
(^56) The Privilege of Self-Critical Analysis, supra note 44, at 1095.
(^57) Id. at 1096–97.
(^58) Id. at 1098.
(^59) Id. at 1099.
(^60) Id. at 1100.
(^61) Flanagan, supra note 40, at 576.