Academic journal article Environmental Law

The Self-Critical Analysis Privilege and Environmental Audit Reports

Academic journal article Environmental Law

The Self-Critical Analysis Privilege and Environmental Audit Reports

Article excerpt

I. Introduction II. Evolution of the Self-Critical Analysis Privilege

A. Privileges in Federal Practice

B. Principles, Policy Rationales, and Elements of the Privilege

C. Limits to Application of the Privilege III. Compliance Audit Reports as Self-Evaluative Material

A. The Form and Function of Environmental Compliance

Audits

B. Qualification of Audit Reports as Self-Evaluative Material

C. Minimizing the Risk of Discovery of Self-Evaluative Material IV. Conclusion

I. Introduction

Over the past two decades, several federal courts have recognized a qualified privilege(1) which shields certain institutional self-evaluations from discovery.(2) Commentators remarking on this development have suggested that this privilege might extend protection to environmental audit reports.(3) This suggestion has generated significant interest among attorneys representing businesses subject to environmental laws because of the increased emphasis lawmakers and regulators place on environmental auditing.(4)

Recent trends in evidentiary law, however, suggest t]hat federal courts will not extend the scope of the privilege to include materials not previously recognized.(5) As a consequence, corporations and other organizations undertaking environmental audits should be particularly careful to adequately protect audit results.(6) Part II of this article briefly overviews privileges in federal practice and then reviews the evolution of the self-critical analysis privilege with a particular focus on the principles and policy rationales which have led to the protection of certain types of self-evaluative material.(7) The section then analyzes applications of the privilege and examines the increasing reluctance among the federal judiciary to recognize the privilege. Part III discusses environmental auditing and whether the reports produced as a result of such audits constitute the type of self-evaluative material which the privilege was designed to protect. The article concludes that federal courts, balancing the well established policy of ensuring full and complete disclosure of all relevant facts in litigation against the competing and less established policy of shielding certain institutional self-evaluations from discovery, are unlikely to afford protection under the self-critical analysis privilege to environmental audit reports.(8)

II. Evolution of the Self-Critical Analysis Privilege(9)

A. Privileges in Federal Practice

The Federal Rules of Civil Procedure (FRCP), which govern civil litigation in the federal courts,(10) establish a strong bias in favor of candid and complete discovery of all relevant information which is not privileged.(11) Parties to litigation are provided with numerous devices for obtaining information from adversaries.(12) Even information not admissible at trial may be discoverable if it might lead to the discovery of admissible evidence.(13) The FRCP thus embody the often quoted maxim that "the public has a right to every [person's] evidence."(14) This policy creates a presumption that exceptions to the liberal discovery rules are unusual and to be discouraged.(15) Consequently, claims that information sought in discovery is privileged receive cautious treatment from courts, which narrowly construe the claimed privilege.(16)

Whether or not something is privileged from discovery depends on whether or not it is privileged under the Federal Rules of Evidence (FRE) for purposes of admissibility.(17) The language of FRE 501 reflects Congress, intent that the law of privileges be flexible rather than rigid.(18) The rule explicitly states that privileges are to "be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience."(19) In deciding to recognize an evolving privilege such as that of self-critical analysis, district judges must consider the competing policy considerations affecting the law of privileges generally. …

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