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the defining characteristics of self-critical analysis. For example,
the Dowling court declined to extend self-critical analysis
protection to the defendant’s safety-review documents because
they “will be invaluable to a plaintiff attempting to prove that
his injury was caused by the company’s negligent failure to
make safe a hazardous condition.”^190 (One could hardly imagine
a court ordering disclosure of attorney-client or confidential
psychiatric material because it would be “invaluable” to an
adversary’s case.) Even the Bredice court, which applied the
privilege—and which, incidentally, referred to it as
“qualified”—did so because it felt plaintiff failed to show “good
cause” to discover the materials.^191 For the self-critical analyzer
to confidently predict whether a hypothetical discoverer will
successfully argue “good cause” in front of a randomly chosen
judge or magistrate seems next to impossible.
Similarly, in New Jersey, the three-part balancing test
established in McClain emphasized the discoverer’s
“particularized need” for the self-critical materials,^192 while
Payton emphasized the court’s role in overseeing an “exquisite
weighing process” in determining whether to shield
documents.^193 For example, in Christy, the court refused
disclosure of opinions of the committee, noting that the plaintiff
had already retained experts to support his medical malpractice
claim, but allowed for discovery of other portions which it
believed could reasonably lead to discovery and which would
not prejudice defendant. Finally, the current approach in the
District of New Jersey, which borrows from both New Jersey
and federal law, employs a six-part self-critical analysis test,
which emphasizes equity balancing at virtually every stage.^194
(^190) Dowling v. Am. Haw. Cruises, 971 F.2d 423, 427 (9th Cir. 1992)
(emphasis added).
(^191) Bredice v. Doctors Hosp., Inc., 50 F.R.D. 249, 251 (D.D.C. 1970)
(“Absent evidence of extraordinary circumstances, there is no good cause
shown requiring disclosure of the minutes of these meetings.”).
(^192) McClain v. College Hosp., 492 A.2d 991, 993 (N.J. 1985).
(^193) Payton v. N.J. Tpk. Auth., 691 A.2d 321, 331 (N.J. 1997) (quoting
Loigman v. Kimmelman, 505 A.2d 958, 964 (N.J. 1986)) (internal quotation
marks omitted).
(^194) See, e.g., Bracco Diagnostics, Inc. v. Amersham Health Inc., No. 04-