Opinion
Civ. No. 99-641 (MJD/RLE)
August 15, 2000.
MEMORANDUM ORDER
At Duluth, in the District of Minnesota, this 15th of August, 2000.
I. Introduction
This matter came before the undersigned United States Magistrate Judge pursuant to a general assignment, made in accordance with the provisions of Title 28 U.S.C. § 636 (b)(1)(A), upon the Plaintiff's Motion to Compel, and the parties' joint Motion to extend certain of the Pretrial deadlines.
A Hearing on the Motion was conducted on August 9, 2000, at which time, the Plaintiff appeared by H. Patrick Weir, Jr., Esq., and the Defendant appeared by Richard C. Scattergood, Esq.
For reasons which follow, the Plaintiff's Motion is granted in part and, for good cause shown, we modestly extend the pretrial deadlines for discovery, for the filing of nondispositive and dispositive Motions, and we also extend the "Ready for Trial" date.
Specifically, discovery in this action shall close on September 15, 2000, nondispositive Motions shall be filed by no later than October 15, 2000, dispositive Motions shall be filed by no later than December 15, 2000, and the case shall be "Ready for Trial" on December 15, 2000, or thirty days after the Court shall decide any then pending dispositive Motion, whichever date is later.
II. Discussion
The Defendants oppose the Motion to Compel, and the underlying discovery requests, on grounds of the attorney work-product, and the "self-critical analysis" privilege. Since they involve different concepts, we address these privileges separately.A. The Attorney Work-Product Privilege. The Defendant has objected to the requested production of a witness statement, which was authored by the Defendant Richard K. Cleaveland ("Cleaveland") just after the motor vehicle accident which forms the basis of the Plaintiff's wrongful death action. Cleaveland is a truck driver, who was employed by the Defendant Consolidated Freightways Corporation ("Consolidated"), and who was involved in a motor vehicle accident, which occurred in North Dakota, on December 3, 1997, and which took the life of the Plaintiff's decedent. At the scene of the accident, and consistent with Consolidated's Employment Guidelines, Cleaveland completed an Accident Report Form. In addition, Cleaveland made statements to investigating law enforcement officers, and to an investigator retained by Consolidated.
As here pertinent, Consolidated's Guidebook provides as follows:
In case of accident, follow these instructions so [Consolidated] is assured of accurate information relevant to the accident.
* * *
6. Follow instructions on your driver's preliminary report of accident.
a. Completely fill out your report.
b. Have witness cards filled out.
c. Make freehand drawing.
7. Do not discuss accident except with company personnel, police or our adjuster when sent to you. (All representatives must properly identify themselves.).
Consolidated had also objected to a statement, which had been secured, from a witness to the accident, by its accident reconstruction consultant. At the time of the document's request, Consolidated had not decided whether that consultant would be called to testify at the time of Trial. Now, however, Consolidated has designated the consultant as a Trial witness, and it has agreed to produce the contested statement to the Plaintiff.
Upon the Plaintiff's request for their production, Consolidated produced the statements made to the investigating officers, but declined to produce the statements obtained by its privately retained investigator, and the Accident Report form that had been prepared by Cleaveland. At the time of the Hearing, the Plaintiff made clear that she was not requesting the statements obtained by the private investigator, but regarded the Accident Report form, that had been prepared by Cleaveland, as incidental to Consolidated's ordinary course of business, and not as having been generated in anticipation of litigation. We conclude, based upon our in camera review of the Accident Report form, as well as the circumstances surrounding its preparation, that it was not prepared in anticipation of litigation and, therefore, is not privileged under the attorney work-product doctrine.
As our Court of Appeals has instructed, in ascertaining whether a document had been prepared in anticipation of litigation:
[T]he test should be whether, in light of the nature of the document and the factual situation in the particular case, the document can fairly be said to have been prepared or obtained because of the prospect of litigation. But the converse of this is that even though litigation is already in prospect, there is no work product immunity for documents prepared in the regular course of business rather than for purposes of litigation.Simon v. G.D. Searle Co., 816 F.2d 397, 401 (8th Cir. 1987), cert. denied, 484 U.S. 917 (1987).
In Banks v. Wilson, 151 F.R.D. 109, 112 (D. Minn. 1993), when confronting this same issue, we observed as follows:
Given th[e] standard of review [in Simon], we need not decide if every action an insurance company takes in the appraisal of a claim is privileged work product, for we are confronted with a specific type of action — the taking of a "statement," as that term is defined in Rule 26(b)(3), from an insured who was involved in an accident in which a claim has been filed against the insurer. While not accepting that every document an insurer may prepare in the "wake of an accident" is protected work-product, we do find it perceptually and logically implausible that an insured's statement, which is taken as a consequence of an occurrence which as engaged his insurance coverage, could be for a purpose other than anticipated litigation.
As noted, Consolidated requires its drivers to complete an Accident Report form at the scene of every motor vehicle accident in order to assure it of "accurate information relevant to the accident." The reporting requirement is universal, and is not triggered by the nature of the occurrence, its consequence in personal injury, death, or property damage, or any reasonable apprehension of litigation. Rather, the completion of the form is automatic, and is a natural by-product of management's legitimate right to be informed. Therefore, the attorney work-product privilege does not immunize Cleaveland's Accident Report form from the Plaintiff's discovery requests, and the document should be produced to the Plaintiff forthwith.
Having reviewed the form, in camera, we seriously doubt that it contains information that has not previously been disclosed in Cleaveland's statement to law enforcement, or in his deposition transcript. More importantly, we find nothing in the form which so much as intimates the Trial strategies, or thinking, of Consolidated's lawyers, nor does it require Cleaveland to opine as to the fault of the accident in question.
B. The "Self-Critical Analysis" Privilege. At some time following the accident, Consolidated sought to terminate Cleaveland's employment as one of its drivers. The termination was grieved and, following a Hearing, the termination was converted into a suspension. In the course of her discovery, the Plaintiff sought to determine the bases, if any, for the termination of Cleaveland's employment that Consolidated sought. Those inquiries brought an objection, from Consolidated, on the basis of the "self-critical analysis" privilege. The Plaintiff now seeks to overrule those objections.
Article 46 of the Collective Bargaining Agreement, between Consolidated, and Cleaveland's Union, establishes the procedure by which an employee may be subjected to discharge, or suspension. A Notice of Investigation, under Article 46, was transmitted by Consolidated, to Cleaveland, on December 8, 1997, which was followed by a letter of discharge, on January 8, 1998, that was rescinded, in favor of a suspension, by letter dated February 24, 1998. Consolidated objects to the production of these three letters, and it has interposed objections, during the depositions of Cleaveland, and of Calvin R. White, the Consolidated manager who authored the letters, which sought to determine the factual bases for the discipline that Consolidated meted out to Cleaveland.
Since our jurisdiction over this case is predicated on the diversity of the parties' citizenship, we are obligated to determine the applicability of any claimed privilege according to State law. See, Rule 501, Federal Rules of Evidence ("[I]n civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the privilege of a witness, * * * shall be determined in accordance with State law."); Simon v. G.D. Searle Co., supra at 402. The question, albeit here an inconsequential one, is which State's law to apply. The Plaintiff urges that we apply North Dakota law, as the accident, which forms the basis of her Complaint, occurred in North Dakota. In contrast, the Defendant contends that Minnesota law should apply, because the privilege, if any there be, was formed in Minnesota, by the transmittal of letters from Consolidated, which has its corporate offices in Circle Pines, Minnesota, to Cleave-land, who then lived in Chisago City, Minnesota. We need not resolve this choice of law question, however, as we conclude that, under either State's laws, the "self-critical analysis" privilege would not apply under the circumstances here, and we detail our analysis, under Minnesota law, only because the rule in North Dakota is controlled by legislative mandate. See, Clark v. Kellogg Co., 205 F.3d 1079, 1082 (8th Cir. 2000).
As noted, under North Dakota law, we would reach the same conclusion, concerning the inapplicability of the "self-critical analysis" privilege, but our task would be less involved. North Dakota law limits privileges to those specifically enumerated in the Constitution and laws of that State. See, Rule 501, North Dakota Rules of Evidence; Trinity Medical Center, Inc. v. Holum, 544 N.W.2d 148, 152 (N.D. 1996) (refusing to recognize a medical peer review committee privilege, because the privilege was not enumerated in State statutes, rules or Constitution). Here, Consolidated points to no North Dakota statute, ruler or constitutional provision, which recognizes the "self-critical analysis" privilege, under the circumstances here presented and, therefore, the privilege is not recognized by the North Dakota Courts.
The Courts of Minnesota have not warmly embraced the "self critical analysis" privilege. This, in part, is attributable to a general disfavor of evidentiary privileges. As recognized by the Supreme Court, in Trammel v. United States, 445 U.S. 40, 50-51 (1980):
Testimonial exclusionary rules and privileges contravene the fundamental principle that "`the public * * * has a right to every man's evidence.'" United States v. Bryan, 339 U.S. 323, 331, 70 S.Ct. 724, 730, 94 L.Ed. 884 (1950). As such, they must be strictly construed and accepted "only to the very limited extent that permitting a refusal to testify or excluding relevant evidence has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth." Elkins v. United States, 364 U.S. 206, 234, 80 S.Ct. 1437, 1454, 4 L.Ed.2d 1669 (1960) (Frankfurter, J., dissenting). Accord, United States v. Nixon, 418 U.S. 683, 709-710, 94 S.Ct. 3090, 3108-3109, 41 L.Ed.2d 1039 (1974)Trammel also recognized, however, that "[t]he Federal Rules of Evidence acknowledge the authority of the federal courts to continue the evolutionary development of testimonial privileges in federal criminal trials `governed by the principles of the common law as they may be interpreted * * * in the light of reason and experience.'" Id. at 47. Subsequently, in Jaffee v. Redmond, 518 U.S. 1, 8 (1996), quoting Trammel v. United States, supra at 47, the Court reconfirmed that Rule 501 "did not freeze the law governing the privileges of witnesses in federal trials at a particular point in our history, but rather directed federal courts to `continue the evolutionary development of testimonial privileges.'"
As a consequence, in asking that we adopt the doctrine typically described as the "self-critical analysis" privilege, Consolidated must show that such a privilege "promotes sufficiently important interests to outweigh the need for probative evidence." Trammel v. United States, supra at 51. of course, such a showing must comport, under Rule 501, with the governing State law. As to Minnesota, we find no decision, by a State Court, which has adopted the privilege, nor do we find any Federal decision, within this District, which predicts how Minnesota would rule on such an issue. See, First Colony Life Ins. Co. v. Berube, 130 F.3d 827, 829 (8th Cir. 1997) ("In the absence of controlling state law, we must predict how the state's highest court would decide the issue."); see also, Clark v. Kellogg, Co., supra at 1082 ("[I]f the state law is ambiguous, we predict how the highest court of that state would resolve the issue.").
Necessarily, we operate with a scalpel, and not a scythe — we need not resolve whether a "self-critical analysis" privilege will ever apply, for we need only consider whether, under that doctrine, the Plaintiff's discovery should be precluded. As noted, Minnesota Courts have not endorsed the privilege Consolidated seeks to invoke. In the case of In re Matter of Parkway Manor Healthcare Center, 448 N.W.2d 116 (Minn.App. 1989), rev, denied (Minn., January 18, 1990), the Minnesota Court of Appeals concluded that, unless established by State statute, the "common-law privilege for self-evaluation data" should not be recognized, as it had not been prescribed by the Minnesota Legislature. Later, however, in State v. Larson, 453 N.W.2d 42, 46 n. 3 (Minn. 1990), vacated and remanded on other grounds, 498 U.S. 801. (1990), aff'd. on remand, 472 N.W.2d 120 (Minn. 1991), the Minnesota Supreme Court rejected the premise, which undergirded the Court's holding in Parkway, that evidentiary privileges were the exclusive province of the Legislature. As a consequence, whether Minnesota would adopt the privilege, which Consolidated advocates, remains an open question.
The Minnesota Legislature has recognized a peer-review privilege for public health organizations, see, Minnesota Statutes Section 145.64, and for self-evaluation reports concerning environmental compliance, see, Minnesota Statutes Sections 114C.22, and 114C.26. Consolidated does not suggest, let alone substantiate, that-any such legislative enactment applies to its objection to the Plaintiff's discovery requests.
No more guidance, on the specific issue before us, can be gleaned from the pertinent Federal decisions, of this Circuit, which have addressed the "self-critical analysis" privilege. The issue was generally addressed, by our Court of Appeals, in In re Burlington Northern, Inc., 679 F.2d 762, 765 and n. 4 (8th Cir. 1982), and in Emerson Electric Co. v. Schlesinger, 609 F.2d 898, 906 (8th Cir. 1979), but neither decision reveals any inclination, by the Court, to broadly recognize a "self-critical analysis" privilege. In Emerson, the Court found the proposed privilege to be inapposite and, in Burlington, the Court observed:
A number of other courts have relied upon a "self-evaluation" privilege in diverse factual settings. More recently, however, courts have appeared reluctant to enforce even a qualified "self-evaluation" privilege. They typically concede its possible application in some situations, but then proceed to find a reason why the documents in question do not fall within its scope. As the court stated, in Lloyd v. Cessna Aircraft Co., 74 F.R.D. 518, 522 (E.D. Tenn. 1977), the privilege "at the most remains largely undefined and has not generally been recognized." FTC v. TRW, Inc., 202 U.S. App.D.C. 207, 628 F.2d 207, 210 (1980) * * *
A Court of this District has described Burlington as reflecting the Court of Appeals' "marked reluctance to accept the claimed privilege." Capellupo v. FMC Corp., 1988 WL 41398 *4 (D. Minn. 1988).
Indeed, the Court, in Capellupo, refused to accept the "self critical analysis" privilege in the context of a Federal Question case. This rejection of the privilege is joined by the Court's refusal, in Konrady v. Oesterling, 149 F.R.D. 592, 598 (D. Minn. 1993), to recognize a generally applicable privilege, against the disclosure of self-evaluation evidence, in a case arising under this Court's diversity of citizenship jurisdiction. While these decisions are instructive, they are not dispositive of the issues here presented. Instead, we are obligated to determine, given the factual record before us, whether some privilege should foreclose the Plaintiff from inquiring as to the bases for Consolidated's effort to terminate the employment of Cleaveland, as one of Consolidated's truck drivers.
Consolidated argues that, given the public policy which favors safe highways, it should not be forced to choose between disciplining an errant driver, so as to remove the hazards that such a driver could impose upon the public-at-large, or refusing to remove the driver from the public roadways, for fear that the bases for such discipline could be exposed to litigants whose interests are adverse to those of Consolidated. While Consolidated's self-interest may prompt it to pursue a general exclusionary privilege, which would insulate potentially inculpatory materials from discovery, we find no basis, in law or public policy, to so immunize those materials.
Applying the framework that Consolidated recommends, if the "self-critical analysis" privilege is to apply, then it must satisfy the following criteria: "[F]irst, the information must result from a self-critical analysis undertaken by the party seeking protection, second, the public must have a strong interest in preserving the free flow of the type of information sought, * * * the information must be of the type whose flow would be curtailed if discovery were allowed" and, in any event, "no document will be accorded a privilege unless it was prepared with the expectation that it would be kept confidential, and has in fact been kept confidential." Spencer Savings Bank v. Excell Mortgage Corp., 960 F. Supp. 835, 836 n. 2 (D. N.J. 1997). The information, that Consolidated seeks to protect, does not satisfy these criteria, assuming that they are sufficient to invoke a properly founded exclusionary privilege.
At the outset, we seriously doubt, as a pure matter of reality — if not of Newtonian physics — that any human act is devoid of repercussions, favorable or unfavorable. Consolidated elected to seek Cleaveland's removal from its employment roster and, right or wrong, it consciously decided to pursue that course. In this instance, it appears that Consolidated's approach was ill-advised for, following a Hearing, Cleaveland remained in its workforce. Understandably, the reasons Consolidated advanced for Cleaveland's discharge may not be consonant with its current defenses against the Plaintiff's claim, but any such incompatibility would scarcely advise the privilege Consolidated requests.
First, we find little self-critical about Consolidated's election to discharge Cleaveland. This is not an exercise in which Consolidated sought, collegially, to assess the pros and cons of its hiring practices, which could have isolated persons, with poor driving propensities, from being operators of its vehicles. Rather, Consolidated determined, on whatever information was available, that Cleaveland should not continue to operate its motor vehicles. Undoubtedly, Consolidated's effort, to insulate itself from further liability exposure attributable to motor vehicle accidents, is an understandable exercise of management's prerogatives, but there is little that is self-critical about that process. If this approach is "self-critical," then any effort on the part of a Defendant, in defense of a claim of liability, has "self-critical" overtones.
Although we can accept that, in the interests of public safety, dangerous over-the-road drivers should be removed from the nation's freeways, we do not believe that such a commendable purpose justifies the cloaking of the evidence that Consolidated proposes. Stated otherwise, we have no reason to believe that the public has "a strong interest in preserving the free flow of disciplinary information," by precluding its discovery by those who have, allegedly, been damaged by the acts of the person to whom that information relates. Rather, we conclude that one of the most effective means of assuring that the public's interest, in removing dangerous drivers from the nation's roadways, is to hold those, who employ such drivers, liable for their wrongful acts.
Nor do we believe that, absent the privilege that Consolidated proposes, the over-the-road truck driving industry will refrain from seeking to remove those drivers whose conduct warrants their extraction from the public highways. Rather, we conclude that, as a matter of corporate self-interest, responsible business practices will prompt the truck driving industry to assure that commercial truck drivers, in the industry's employ, will not pose a risk to the unsuspecting public. Lastly, we have no showing that Consolidated sought to treat the information, that it now seeks to shield, as being confidential, or that it was, in fact, treated as confidential.
Accordingly, we conclude that, even if the "self-critical analysis" privilege were extant in the State of Minnesota — a prospect we necessarily leave open — the circumstances here do not warrant its invocation. of course, we are mindful of Consolidated's concern, which we find to be understandable, that certain of its contentions, expressed as a product of advocacy in the context of a disciplinary proceeding, might be viewed as an admission against interest. Notwithstanding that concern, we deal here with issues of discovery, and not with the essential requisites which govern the admissibility of evidence at Trial. See, Capellupo v. FMC Corp., supra at *6. Should the discovery requests, that the Plaintiff has advanced, elicit opinions, whether as to fault or otherwise, that Consolidated regards as without foundation, or inadmissible on other grounds, then Consolidated may properly seek to exclude those opinions at Trial. For our purposes, however, we have no basis to preclude the disclosure of those opinions in response to properly formed discovery requests.
We accede to the parties' suggestion that any depositions, which need to be completed as a result of the objections which were previously interposed, can be accomplished by telephone.
NOW, THEREFORE, It is —
ORDERED:
1. That the Plaintiff's Motion to Compel is GRANTED, in part, and DENIED, in part, as more fully explained in the text of this Order.
2. That the pretrial deadlines of this case are modified such that discovery in this action shall close on September 15, 2000, nondispositive Motions shall be filed by no later than October 15, 2000, dispositive Motions shall be filed by no later than December 15, 2000, and the case shall be "Ready for Trial" on December 15, 2000, or thirty days after the Court shall decide any then pending dispositive Motion, whichever date is later.