In a colorful and refreshingly thorough opinion by Judge Iain D. Johnston, the USDC NDIL—Western Division—refused to adopt the self-critical analysis privilege under federal common law. While a handful of federal courts recognize the privilege, most either reject the privilege or determine that, “without deciding whether the privilege exists,” it does not apply to the facts of that particular case.
Judge Johnston’s opinion addresses the privilege head-on, and I recommend his opinion as the starting place for any lawyer’s research on (1) the legal analysis for recognizing new federal common-law privileges and (2) the national status of the self-critical analysis privilege. Lund v. City of Rockford, Case No. 3-17-cv-50035 (N.D. Ill. Nov. 29, 2017). You may read the decision here.
The Rockford (Ill.) Police Dep’t arrested William Lund, but state prosecutors later dismissed the charges. Lund filed an Internal Discipline Complaint over the incident, and the RPD investigated the arrest and prepared an 88-page report.
During discovery in Lund’s subsequent § 1983 civil action against the City of Rockford, the City produced a redacted version of the report. Lund moved to compel an unredacted copy, and the City asserted that the self-critical analysis privilege protected the full report from discovery.
What is the Self-Critical Analysis Privilege?
The self-critical analysis privilege (SCAP), sometimes called the self-evaluative or self-investigation privilege, generally protects confidential assessments, evaluations, investigations, or audits designed to improve a company’s processes. The concept is that,