NO “SELF-CRITICAL-ANALYSIS PRIVILEGE” AND NO “SELECTIVE WAIVER” PROTECTION FOR DOCUMENTS PRODUCED TO GOVERNMENT

In re Fisher & Paykel Appliances, Inc.
Dallas Court of Appeals, No. 05-13-01498-CV (January 22, 2014)
Justices Moseley, Lang-Miers, and Evans (Opinion)
In this products liability case involving a clothes dryer that caused a fire, the plaintiffs sought discovery from the manufacturer, Fisher & Paykel, of “all correspondence . . . to any governmental agency regarding this occurrence.” Fisher & Paykel objected and interposed a number of privilege claims, including work product and “self-critical analysis,” with respect to three reports it had filed with the United States Consumer Product Safety Commission (“CPSC”). Following a hearing on plaintiffs’ motion to compel and after reviewing the documents in camera, the trial court overruled Fisher & Paykel’s objections and ordered production of the contested reports. Fisher & Paykel sought mandamus relief from that order, but the Court of Appeals refused. It declined to recognize a “self-critical-analysis privilege.” And it similarly refused to adopt the “selective waiver doctrine”—under which some courts have held disclosure to government agencies of otherwise privileged materials does not constitute waiver of the applicable privilege—to preserve any purported privilege attaching to the documents Fisher and Paykel had submitted to the CPSC. Along the way, the Court made observations about the work product privilege that, if applied broadly outside the context of “selective waiver,” may curtail some protections of that privilege.

Some courts have recognized a “self-critical-analysis privilege” to encourage improved safety audits and uninhibited communications with peer review and regulatory authorities. Here, however, the Court of Appeals found no basis in statute or rule for such a privilege. Under Texas Rule of Evidence 502, a person that submits reports to a government agency, such as those at issue here, is privileged not to disclose those reports, but only “if the law requiring [such reports] to be made so provides.” The federal statute applicable here, 15 U.S.C. § 2051, prevents the CPSC itself from divulging reports made under the act, but does not create a general privilege excusing private entities from doing so. So, the Court held, Rule 502 does not protect the reports in issue. Fisher & Paykel then urged the Court to adopt a common law self-critical-analysis privilege. But it declined, noting that no other Texas court had done so and saying, “It is generally not the role of intermediate courts of appeals to declare new common law discovery privileges.”

Fisher & Paykel next argued that parts of the contested documents were protected as attorney work product and that such protection should not be considered waived by disclosure to the CPSC. This, the Court said, amounted to an attempt to invoke the “selective waiver doctrine,” pursuant to which some courts have held that “to the degree a party has been compelled to produce privileged documents to a government agency, the privilege remains despite the disclosure to the agency.” But the appeals court rejected this overture, as well. It found no Texas state court had sanctioned the doctrine and observed that the majority of federal courts considering the doctrine had rejected it—although several of the cases it recounted appear to have involved voluntary rather than compelled disclosure to the government, which would seem to be a salient distinction. Because the government and the reporting party in such situations ordinarily are in an adversarial relationship, the Court observed, disclosure is antithetical to continuing to treat any submission as privileged.

Finally, in an observation that may have broader implications outside the realm of the “selective waiver doctrine,” the Court said, “the mere fact that in compiling a response to a regulatory inquiry or mandate an attorney selects and transmits documents to a regulator does not transform ordinary business documents into work product. Thus, documents transmitted to a regulator as part of an entity’s mandatory reports are not protected from disclosure simply because an attorney chooses which documents or other materials to product to the regulator or because an attorney prepares or compiles portions of the report to the regulator.” Other authorities hold that while otherwise non-privileged documents are not made privileged merely because a lawyer touches them, the process of a lawyer’s selecting or compiling pertinent documents (and therefore any resultant selection or compilation) can reveal an attorney’s mental processes and therefore is protected attorney work product. The Court did not address that line of authority and, because it made those observations as part of its justification for not recognizing the “selective waiver doctrine,” it is not at all clear that the Court intended its words have a broader effect, beyond its resolution of that issue.

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