THE INTEGRATION OF BANKING AND TELECOMMUNICATIONS: THE NEED FOR REGULATORY REFORM

592 JOURNAL OF LAW AND POLICY

the best efforts of the defendants’ bar and corporate counsel,^81
the dream of a broad and impenetrable general privilege, as
articulated in the Harvard Note, has not been realized.

II. SELF-CRITICAL ANALYSIS IN NEW JERSEY

Because the Patient Safety Act referred by name to self-
critical analysis, and because the statute itself explicitly
incorporated the holding of Christy v. Salem,^82 an important self-
critical analysis case which itself was the culmination of two
decades of common law development, it is crucial to understand
the status of the doctrine in New Jersey prior to passage of the
PSA. New Jersey courts, much like the federal courts, have
approached the privilege with caution, recognizing it only in
limited situations.

A. The Lead-Up to Christy

Christy represents a synthesis of two separate streams of case
law—those that confront the self-critical analysis privilege within
the context of medical peer reviews, and those that deal with the
privilege more generally. The most important case, Payton v.
New Jersey Turnpike Authority,^83 was the latter type. Christy
could be understood as an application of Payton in the medical
context. To appreciate the relevance of Christy, a very brief

(^81) For example, the Federation of Defense and Corporate Counsel, a
trade group “dedicated to representation of insurers and corporations,” FED’N
DEF. & CORP. COUNS., http://www.thefederation.org/ (last visited Feb. 21,
2013), recently published an article in their quarterly journal advocating for
formal adoption of the privilege, Kurtis B. Reeg & Mathew A. Temper, The
Self-Critical Analysis Privilege: It Is Time for Formal Adoption, 62 FED’N
DEF. & CORP. COUNS. Q. 80 (2011).
(^82) The statute provides that “[n]othing in this act shall be construed to
increase or decrease the discoverability, in accordance with Christy... of
any documents, materials or information if obtained from any source or
context other than those specified in this act.” N.J. STAT. ANN. § 26:2H-
12.25(k) (West 2007) (citation omitted). For much more on this, see infra
Part III.
(^83) Payton v. N.J. Tpk. Auth., 691 A.2d 321 (N.J. 1997).