CODIFYING COMMON LAW 593
historical sketch of self-critical analysis in New Jersey is in
order.
The first case to grapple with the privilege was Wylie v.
Mills,^84 a lawsuit arising out of an automobile accident, where a
defendant utility company sought protection of a document titled
“[City of] Elizabeth Electric Transmission & Distribution
Committee Investigation—Automobile Accident,” which
purported to “determine whether [the defendant] should alter its
procedures to avoid future injuries to employees.”^85 While the
court summarily rejected the defendant’s contention that the
document was protected under a work-product or attorney-client
privilege, it found defendant’s assertion of the “nascent” self-
critical analysis protection to be a “more formidable and
persuasive argument.”^86 Citing Bredice, the court determined
that “confidentiality and the ‘public need for confidentiality’ are
the sine qua non of effective internal self-critical analysis”^87 and
protected the evaluative portions of the report while ordering
disclosure of the factual portions.
One year later, in 1985, the New Jersey Supreme Court, in
McClain v. College Hospital, expounded upon Wylie’s
discussion of the privilege.^88 Within the context of medical peer
reviews, the court ruled that the plaintiff/discoverer must show
particularized need that outweighs the public interest in
confidentiality of the investigative proceedings, taking
into account (1) the extent to which the information may
be available from other sources, (2) the degree of harm
that the litigant will suffer from its unavailability, and (3)
the possible prejudice to the agency’s investigation.^89(^84) Wylie v. Mills, 478 A.2d 1273 (N.J. Super. Ct. Law Div. 1984). A
Westlaw search reveals this to be the first New Jersey case in which a court
either used the phrase “self-critical analysis” or cited Bredice.
(^85) Id. at 1275.
(^86) Id. at 1276.
(^87) Id. at 1277.
(^88) McClain v. Coll. Hosp., 492 A.2d 991, 997–98 (N.J. 1985).
(^89) Id. at 993.