Self-Critical-Analysis Privilege Law and Legal Definition

The self-critical analysis privilege protects self-evaluative materials and results of candid assessments of compliance with laws and regulations from discovery when the public interest in preserving the internal evaluations of organizations outweighs a plaintiff’s right to the evidence. This privilege is based on the public policy that it is beneficial to permit individuals and entities to confidentially evaluate their compliance with the law, so that they will monitor and improve their compliance with it.

The self-critical analysis privilege originated over thirty-five years ago in Bredice v. Doctors Hospital, Inc., 50 F.R.D. 249 (D.C. 1970). However, despite its origin over thirty-five years ago, most courts have refused to apply the self-critical analysis privilege beyond the medical peer review context. This privilege is not generally accepted. It has been applied by some courts, and rejected by many others.

Courts that allow the privilege generally require four criteria before applying it:

  • The information sought to be protected must result from self-critical analysis performed by the party claiming the privilege;
  • The free flow of this type of information must advance a strong public interest;
  • The information sought must result from the type of analysis that would be curtailed if discovery were allowed; and
  • The document sought to be protected was prepared with the expectation that it would be kept confidential, and in fact has remained so.
    • Unfortunately, this "balancing test" also has not been consistently applied by trial courts, resulting in widely conflicting decisions and inconsistent applications of the privilege.