By Andrew Kopon Jr., Robert W. Hickey, and Scott A. Kearns
For a corporation today, the reality of being sued is a legitimate concern in many decisions. The fear of litigation must be balanced with the corporate desire to protect its employees and the public. A corporation will often try to learn from its actions by conducting internal reviews of its procedures to determine what, if anything, it could improve upon. These reviews may be summarized in a report that contains self-critical statements. The report may be prepared before or after an accident or injury has occurred.
Because these reports contain self-critical statements, plaintiffs routinely request them as part of discovery. This article discusses the strong public policy reasons against such disclosure and its embodiment in the privilege of self-critical analysis. The article discusses why the privilege is a necessity and the criteria for the application of the privilege. Also, this article will discuss how Illinois courts and the Seventh Circuit have dealt with the privilege and how other jurisdictions have applied the privilege. Lastly, this article will discuss practice tips in asserting and preserving the privilege.