CODIFYING COMMON LAW 613
V. CONCLUSIONS
A. An Analytical Misfit in the Family of PrivilegesThe drafters of the PSA should have foreseen that their self-
critical analysis privilege, by its own terms, was destined to
unleash trouble. As argued in Parts I and II of this Note, the
self-critical analysis privilege, as applied in both the federal
system and New Jersey, was always “qualified.” Hence, courts
assessed self-critical analysis on a case-by-case basis. The
privilege could be overcome through the showing of a litigant’s
exceptional need, and even if applied in a given case, the
privilege would not protect facts from disclosure. This dynamic
is in stark contrast to long-established “unqualified” privileges,
such as the attorney-client or spousal varieties, in which courts
refuse to allow for compromise, no matter how compelling the
need, correctly recognizing that allowing for equitable
“exceptions” would undermine the underlying relationships the
privilege was designed to protect.
This Note therefore suggests that much of the controversy
surrounding self-critical analysis is rooted in its unfortunate and
erroneous description as a “privilege,” when a much more
accurate descriptor would be “protection.” In determining
whether a piece of evidence is privileged, a court should not
consider the hardship an opposing party may endure. A
thorough balancing of the positive and negative practical
outcomes of recognizing a privilege is surely a crucial
undertaking, but this must occur at the initial privilege-creating
stage, not during its application.^188 As the Upjohn Court
succinctly stated, “an uncertain privilege, or one which purports
to be certain but results in widely varying applications by the
courts, is little better than no privilege at all.”^189
New Jersey and federal courts simply have not approached
self-critical analysis doctrine with this level of deference. The
“uncertainty” endemic to any qualified privilege has been one of
(^188) See supra Part I. See generally The Privilege of Self-Critical Analysis,
supra note 44, at 1097–99.
(^189) Upjohn Co. v. United States, 449 U.S. 383, 393 (1981).