5646757752_5a4ea2ea2d_zThe self-critical analysis privilege – the notion that organizations should be able to take a candid look at their own procedures and performance without fear of being forced to disclose the results in discovery – has been lurking around the periphery of civil litigation for forty-four years, since Bredice v. Doctors Hospital, Inc. in 1970. In that time, the privilege has spawned a lot of commentary without being unequivocally adopted in too many jurisdictions.

In the closing days of the March term, the Illinois Supreme Court declined an invitation to recognize the privilege in Harris v. One Hope United, Inc. Our summary of the underlying facts and lower court opinions is here. Our report on the oral argument is here.

Harris began when the Illinois Department of Children and Family Services received a complaint about alleged neglect of a seven-month old child. DCFS assigned the matter to the defendants to monitor the child and her family. DCFS ordered that the child live with her aunt for a time, but ultimately, the child was returned to her mother. Not long after, the child was drowned when her mother left her unattended while bathing her.

The Cook County Public Guardian, acting as administrator of the child’s estate, sued the defendant for wrongful death, alleging that the child should not have been returned to her mother. During discovery, the executive director of the defendant disclosed that the defendant maintained a continuous quality review department to assess the quality of the defendant’s care, identify “gaps in service delivery” and evaluate whether outcomes were successful or not. The plaintiff moved to compel production of the program report, but the defendant refused, invoking the self-critical analysis privilege. The circuit court granted the motion to compel and – on appeal from an order of friendly contempt – the Appellate Court affirmed.

In an opinion by Justice Karmeier, a unanimous Court affirmed. According to the Ninth Circuit, “if such a privilege exists,” the privilege has four elements: (1) the information must result from a self-critical analysis; (2) the public must have a strong interest in preserving the free flow of the type of information sought; (3) the information must be of a type whose free flow would be curtailed if discovery were allowed; and (4) the document was prepared in expectation of confidentiality, and has in fact been kept confidential.

The Court found that recognition of a new common-law privilege involved a decision that a privilege promotes sufficiently important interests to outweigh the need for probative evidence. That was a judgment best left in nearly all cases to the legislature, the Court said. Even in the extremely rare occasions where it might be justified for the Court to act on its own, previous legislative enactments should be carefully considered.

That inquiry was decisive here, the Court found. The defendant relied upon the Medical Studies Act (735 ILCS 5/8-2101) in arguing for recognition of the privilege, but in fact, the Act cut the other way. Given the structure of the Act, the legislature could easily have recognized a self-critical analysis privilege – but it chose not to do so. Nor did the Child Death Review Act (20 ILCS 515/5(3)), also relied upon by the defendant, support finding a privilege. That Act prioritized full and complete disclosure of the circumstances of any child death case, and that interest counseled against recognizing a privilege. Taken together, the Court held that the two Acts were persuasive evidence that the legislature preferred not to recognize a self-critical analysis privilege under such circumstances. Accordingly, the Court affirmed the judgments of the Circuit and Appellate Courts ordering disclosure. The Court also affirmed the Appellate Court’s decision to vacate the contempt finding against the defendant on the grounds that the defendant had acted in good faith.

Image courtesy of Flickr by Woody Hibbard (no changes).