CODIFYING COMMON LAW 591
courts have relied on University of Pennsylvania to reject a self-
critical analysis privilege.^75
Today, many courts rely on the four-part test articulated by
the Ninth Circuit in Dowling v. American Hawaii Cruises,^76
which held that a party asserting the privilege must show that:
“[1] the information must result from a critical self-
analysis undertaken by the party seeking protection; [2]
the public must have a strong interest in preserving the
free flow of the type of information sought; [3] the
information must be of the type whose flow would be
curtailed if discovery were allowed.”... [And 4, that
the document] was prepared with the expectation that it
would be kept confidential, and has in fact been kept
confidential.^77
In Dowling, the court allowed the plaintiff, in his personal
injury action under the Jones Act,^78 to discover the factual
content of the defendant cruise ship’s preaccident safety
committee meeting minutes, reasoning that “organizations have
many incentives to conduct such reviews that outweigh the harm
that might result from disclosure,” such as fear of other lawsuits
or simply “to avoid developing a reputation for having an unsafe
premises.”^79
Altogether, the federal courts have generally declined to
extend application of the self-critical analysis doctrine.^80 Despite
(^75) Jenoff, supra note 14, at 585 (observing that the majority of lower
courts have “seemed to take University of Pennsylvania as a broad mandate
to reject the self-critical analysis privilege” in the employment context).
(^76) Dowling v. Am. Haw. Cruises, Inc., 971 F.2d 423 (9th Cir. 1992).
(^77) Id. at 426 (citations omitted) (quoting The Privilege of Self-Critical
Analysis, supra note 44, at 1086).
(^78) The Jones Act, also known as the Merchant Marine Act of 1920,
empowers injured seamen with a tort remedy. 46 U.S.C. § 30104 (2011) (“A
seaman injured in the course of employment... may elect to bring a civil
action at law... .”).
(^79) Dowling, 971 F.2d at 426. Remanding the case, the court did not
explicitly rule on whether opinions and conclusions would still be protected.
Id. at 427.
(^80) See GREENWALD ET AL., supra note 21, § 1:119.