# Amicus Curiae Brief — In re USAir, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386004_1218%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1996 - **Citation:** 519 U.S. 806 ## Text 29 16 2 Docket No. 96-157 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1996 In Re: USAir, Inc. ON PETITION FOR WRIT OF PROHIBITION TO THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NORTH CAROLINA MOTION OF AIR TRANSPORT ASSOCIATION OF AMERICA FOR LEAVE TO FILE BRIEF AS AMICUS CURIAE AND BRIEF AS AMICUS CURIAE IN SUPPORT OF PETITION FOR WRIT OF PROHIBITION LOUISE B. COBBS* HAIGHT, GARDNER, POOR & HAVENS 2000 Pennsylvania Avenue, N.W., Suite 4400 Washington, D.C. 20006 Tel: (202) 496-2700 *Counsel of Record for the Amicus Curiae August 29, 1996 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1996 No. 96-157 In Re: USAir, Inc. ON PETITION FOR WRIT OF PROHIBITION TO THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NORTH CAROLINA MOTION OF AIR TRANSPORT ASSOCIATION OF AMERICA FOR LEAVE TO FILE BRIEF AS AMICUS CURIAE IN SUPPORT PETITION FOR WRIT OF PROHIBITION The Air Transport Association of America ("ATA") hereby respectfully moves for leave to file the attached brief amicus curiae in this case. The ATA has notified all other parties to this action and has received the following responses to its request for consent to file this brief amicus curiae: Petitioner, USAir, Inc. has consented; David Rapoport, Rapoport & Kupets Law Offices, has objected on behalf of plaintiffs below; and no other party has responded. The ATA is a non-profit unincorporated association of federally-certificated air carriers providing scheduled and charter passenger and cargo air transportation. ATA represents the 2 interests of U.S. airlines’ that account for more than 95 percent of domestic passenger and cargo traffic. Its principal function is to represent the interests of the U.S. commercial airline industry before the United States Congress, federal agencies, state legislatures, and before federal and state courts. ATA works closely with federal agencies concerned with aviation safety and provides a forum in which airlines can discuss and encourage safety initiatives through industry working groups. ATA has filed numerous amicus briefs in federal and state court proceedings concerning a wide variety of issues of interest to its members, including an amicus brief in the court below. In the court below, Petitioners and ATA argued for application of the self-critical analysis privilege to protect from disclosure certain internal airline safety reports. The ATA as amicus is uniquely ab’e to describe the significant effect on the airline industry’s safety programs if the decision of the court below is allowed to stand. The Court has consistently allowed industry associations, including, e.g., the ATA, to file briefs as amicus curiae. See American Airlines, Inc. v. Wolens, _ U.S.__, 115 S.Ct. 817 (1995); Northwest Airlines, Inc. v. County of Kent, Michigan, 510 U.S. 355 (1994). Millions of passengers justifiably rely on ATA’s member airlines, whose excellent safety record is due in part to internal safety review mechanisms that the self-critical analysis privilege is designed to protect and foster. The self-critical analysis privilege has been applied by many courts, primarily trial courts in ' ATA’s members are: Alaska Airlines,Inc.; Aloha Airlines, Inc.; America West Airlines, Inc.; American Airlines, Inc.; American Trans Air, Inc; Continental Airlines, Inc.; Delta Air Lines, Inc.; DHL World Airways, Inc.; Evergreen International Aviation, Inc.; Federal Express Corp.; Hawaiian Airlines, Inc.; Kiwi International Airlines, Inc.; Midwest Express Airlines, Inc.; Northwest Airlines, Inc.; Polar Air Cargo, Inc.; Reeve Aleutian Airways, Inc.; Southwest Airlines Co.; Trans World Airlines, Inc.; United Airlines, Inc.; United Parcel Service Co.; and USAir, Inc. Associate members are: Air Canada; Canadian Airlines International; and KLM-Royal Dutch Airlines. 5 A AER BT 3 interlocutory orders addressing discovery disputes. The federal courts of appeals have also recognized the privilege, but have disagreed on its elements and have applied it in an uneven, inconsistent, and unpredictable manner, including the court below. Further, the decision of the court below ignored the criteria set forth in this Court’s decision in Jaffee v. Redmond, _US. _, 116 S.Ct. 1923 (1996). The lack of clarity in the federal courts of appeals regarding the scope and application of the privilege has a serious chilling effect on airlines’ ability to engage in full and frank internal safety analyses. In ATA’s view, not only does Petitioner raise an important question of federal law worthy of this Court’s consideration, but the chilling effect of the lower courts’ disarray on the scope of the self-critical analysis privilege provides an additional compelling reason for this Court’s review. Accordingly, ATA seeks the Court’s permission to file this brief amicus curiae to demonstrate that the self-critical analysis privilege is crucial to fostering meaningful internal safety reviews that benefit the travelling public. Failure to recognize and apply the privilege to internal airline safety audits and reviews is contrary to public policy and is inconsistent with Congressional and Federal Aviation Administration policies protecting safety data. Further, failure to so apply the privilege will have a substantial chilling effect on the frankness and completeness of such reviews. 4 WHEREFORE, ATA respectfully requests leave to file the attached brief. Respectfully submitted, LOUISE B. COBBS* HAIGHT, GARDNER, POOR & HAVENS 2000 Pennsylvania Ave., NW, Suite 4400 Washington, DC 20006-1812 (202) 496-2700 * Counsel of Record for Amicus Curiae Air Transport Association of America i QUESTIONS PRESENTED 1. Does the failure of the court below to follow the criteria set forth in Jaffee and Upjohn for applying a privilege add to judicial confusion regarding the self-critical analysis privilege and ignore compelling public policies protecting airline safety reviews? 2. Does the public policy of and the public interest in fostering airline safety compel the protection from discovery of internal airline documents analyzing airline operations under the self- critical analysis privilege? ii TABLE OF CONTENTS Page(s) DURST eee PUN CTIA © o'6. 6: a's S oodiecn bth aces i TREES A GROWER c.5-0. 0 0 o'5 5 8 6 EA eo ROE ii SARS IE RESTORE 6 be ee Bie bee ds ee iv IEA EI 53.650 5 8 ON ES Pe wee 1 INTEREST OF AMICUS CURIAE ................ “ ADIIUMENE. 6.50 63% CAS CECE Eee ee 5 I. THE COURT BELOW FAILED TO FOLLOW PRINCIPLES RECENTLY SET FORTH BY THIS COURT, ADDED TO JUDICIAL CONFUSION, AND FAILED TO RECOGNIZE STATUTORY PUBL. FUER. e COs 6 bee bce see 5 A. The Court Below Failed to Follow This Court’s Decision in Jaffee in Applying the Self-Critical Analysis Privilege ......... 5 B. The Failure of the Court Below to Follow Jaffee Adds to the Confusion in the Lower Courts About the Scope and Application of the Self-Critical Analysis Privilege ......... 9 C. Protection of Aijrline Internal Safety Investigations from Disclosure is a Matter of Compelling Public Policy ........... 12 oer II. AIRLINEINTERNALSAFETY INVESTIGATIONS CLEARLY FALL WITHIN THE SCOPE OF THE SELF-CRITICAL ANALYSIS PRIVILEGE ... 14 A. Airline Internal Safety Investigations Are Conducted to Improve Airline Procedures and PO ea os bd eed eee 14 B. Airline Internal Safety Investigations are Intended to Remain Confidential to Preserve the Free Flow of Ideas ............. 15 C. Permitting Discovery of Airline Internal Safety Investigations will Significantly Curtail the Flow of Information and Will Diminish Their WE Ae ss eed oe a ees Oe 15 Ill. BOTH CONGRESS AND THE FAA INTENDED TO INSULATE SAFETY-RELATED INFORMATION FROM LITIGATION ...... 16 A. Congress Mandated the Protection of Aviation Safety-Related Information .......... 16 B. The FAA Strongly Encourages and Protects Internal Audits and Safety Reviews ..... 18 et Re es Te eer aaa aa See, ae ar ae ca ge 20 FR Gy pa ae Sa kes Rb ee oe ees Al iV TABLE OF AUTHORITIES Page(s) CASES ASARCO, Inc. v. NLRB, 805 F.2d 194 (6th Cir. 1986) 8, 11, 12 Banks v. Lockheed Co., 53 F.R.D. 283 (N.D. Ga. 1971) .. 13 Bradley v. Melroe Co., 141 F.R.D. 1 (D.D.C. 1992)..... 13 Bredice v. Doctors Hospital Inc., 50 F.R.D. 249 (D.D.C. 1970), aff’d without opinion, 479 F.2d 920 GPA Rae ae ee eS CASES 2 ks 8,9, 12 Brem v. Decarlo, 162 F.R.D. 94 (D. Md. 1995) ....... 10 Critical Mass Energy Project v. NRC, 975 F.2d 871 (D.C. Cir. 1992), cert. denied, 507 U.S. 984 (1993) ..... 14 | Culinary Foods, Inc. v. Raychem Corp., 151 F.R.D. 297 IN cle 50s VIER RE SS ree es bes 9 ! Dowling v. American Hawaii Cruises, Inc., 971 F.2d 423 ie oe ioe ae 9, 10, 11 i Etienne v. Mitre Corp., 146 F.R.D. 145 | Le CSP ale eek ici ew bs ce ewe 10, 11 FTC v. TRW, Inc., 628 F.2d 207 (D.C. Cir. 1980) ... 10, 11 First Eastern Corp. v. Mainwaring, 21 F.3d 465 ia Ma Anak oo a eee re 8 OR Se dis 10 Granger v. National R.R. Passenger Corp., 116 F.R.D. 507 es ll ED ek ae a eC eee 10 TS Vv In re Crazy Eddie Security Litigation, pe OS oe SN A. ae 13 In re Grand Jury Proceedings, 861 F. Supp. 386 I eel eat ia Wiss o gos eva e 6 wees ea 9, 11 In re United States, 864 F.2d 1153 (Sth Cir. 1989)........ 9 Jaffee v. Redmond, _U.S._, 116 S.Ct. 1923 (1996)... 3, 5,6 Keyes v. Lenoir Rhyne College, 552 F.2d 579 (4th Cir. 1977), cert. denied, 434 U.S. 904 (1977) ...... 13 Lloyd v. Cessna Aircraft Co., 74 F.R.D. 518 ie SM ae binky Ghee ae aon aed S, £1, 12, 13 McDonnell Douglas Corp. v. EEOC, 922 F. Supp. 235 er Pee Pe ee 11 O'Keefe v. Boeing Co., 38 F.R.D. 329 (S.D.N.Y. 1965) .. 11 Reichhold Chem., Inc. v. Textron, Inc., 157 F.R.D. 522 II 6 oc got oro oe tes i eee eee 11, 12, 13 Reynolds Metals Co. v. Rumsfield, 564 F.2d 663 (4th Cir. 1977), cert. denied, 435 U.S. 995 (1978)....... 10 Richards v. Maine Cent. R.R., 21 F.R.D. 590 ROPERS See Te en 12 Siskonen v. Stanadyne, Inc., 124 F.R.D. 610 I I ong hs ee are wis oo o.'2 5, 6 Southern Ry. Co. v. Lanham, 403 F.2d 119 be REE Sane 8,9, 12 vi United States ex rel Falsetti v. Southern Bell Tel. & Tel. Co., SIS F. Supp. S06 GUD. Fie. T90G) «on ke eee a ws 11 University of Pa. v. EEOC, 493 U.S. 182 (1990) ........ 7 Upjohn Co. v. United States, 449 U.S. 383 (1981) ... 2, 6,8 Warren v. Legg Mason Wood Walker, Inc., SPO FG, Se Gris BU as bo eee eV sO 10 STATUTES FP itis © ORIN 6 64 5 SN ee oo OA ee kes 11, 15, 19 op eS Serr er rae re eee ek. ees 9 RE Eg 3 Ure a ear mopar ey ge ae 9 OP as hc UWA ate a Wes ee hee been 17 Parnes ORO hose bob bea be chee eases 17 Oe Bees Es 0k 00s cae 5 6 we ewan eee 2, 16 Us CONE kas a es ES a ee 2, 16 Oe aes UTNE 6 5 00 ba oa eae en ee 3, 16, 17 OTHER AUTHORITIES Order of Judge Anderson, Oct 25, 1995, In re Air Crash at Charlotte North Carolina on July 2, 1994, ok ee eer er a ee ee a 5 H.R. 3159, 104th Cong. 2d. Sess. (1996)............. 17 H.R. 3536, 104th Cong. 2d. Sess. (1996)............. 17 Ty Ameer Vii S.1994, 104th Cong. 2d. Sess. (1996)............... 17 A Call for the Development of Prototype(s) for a Global Analysis and Information Network (GAIN), Oe Wars WO, BUM cs Sc ec cc eee 18, 19 Federal Aviation Administration (FAA) Advisory Circular (AC) 120-56 ............. 11, 15, 19 Robert J. Busch, Comment, Stimulating Corporate Self-Regulation -- The Corporate Self-Evaluative Privilege: Paradigmatic Preferentialism or Pragmatic Panacea, 87 NW. U.L. REV. 597 RRR at pr che aes A ge ia Nis eh hea 6, 9, 13 Flight Safety Foundation, News, FSF Chairs Aviation Industry Data-sharing Task Force, Feb. 13, 1996 ............. 18 1 MICHAEL H GRAHAM, HANDBOOK OF FEDERAL EVIDENCE ace tp-oe Lise qs, AOE OE eR Pe eee 5 William B. Johnson, Annotation, Discoverability of Traffic Accident Reports and Derivative Information, 84 A.L.R.4th 15 Ce ra em a 556 re ok eae bet te be ake os eis 13 David P. Leonard, Codifying a Privilege for Self-Critical Analysis, 25 HARV. J. ON LEGIS. 113 (1988) ................ 13 National Transportation Safety Board Reauthorization: Joint Hearings before the Subcomm. on Aviation, Subcomm. on Railroads of the House Comm. on Trans. and Infrastructure, 104th Cong., 2d. Sess. 39 (1996) (Statement of Jim Hall, Chairman, aaa ath Os ward oa RA Sea ke Shack 17, 18 Note, The Privilege of Self-Critical Analysis, 96 HARV. L. REV. 1083 (1983) .............. Pe Vili NTSB Comparison of U.S. Transportation Fatalities - Year 1994 we. Four: Tare Cee. 3h Te oak kok Re l John F.X. Peloso, The Privilege for Self-Critical Analysis: Protecting the Public by Protecting the Confidentiality of Internal Investigations in the Securities Industry, 18 SEC. REG. L.J. SAP EE ke ks Re ee eee 13 Paul B. Taylor, Encouraging Product Safety Testing by Applying the Privilege of Self-Critical Analysis When Punitive Damages are Sought, 16 HARV. J.L. & PUB. POL’Yy, 769 (1993) ...... 13 23 CHARLES A. WRIGHT & KENNETH W. GRAHAM, FEDERAL PRACTICE AND PROCEDURE (Supp. 1996) ............. 8 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1996 No. 96-157 In Re: USAir, Inc. ON PETITION FOR WRIT OF PROHIBITION TO THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NORTH CAROLINA BRIEF AS AMICUS CURIAE IN SUPPORT OF PETITION FOR WRIT OF PROHIBITION INTRODUCTION Public policy has demanded that aviation safety be minutely scrutinized ever since airplanes began carrying passengers. Today, more than ever, aviation safety is on everyone’s mind. Despite the fact that the U.S. aviation industry is the safest in the world, and is considerably safer than traveling by automobile’, aviation safety is a constant topic of public debate. It is also a constant topic of private internal analysis and discussion at U.S. airlines. Understanding the causes of accidents and other incidents is the primary objective of airlines’ internal safety reviews and audits. Only free and frank discussion and investigation of ' According to National Transportation Safety Board ("NTSB") estimates, there were 41,700 highway fatalities in 1995 whereas there were only 177 fatalities in involving U.S. airlines, including commuter airlines. NTSB Comparison of U.S. Transportation Fatalities -Year 1994 vs. Year 1995 (Dec. 31, 1995). 2 accidents, incidents, trends, and procedures without apprehension about whether such investigations will later become the focus of discovery, can serve the public policy goals expressed in the Transportation Laws. See 49 U.S.C. § 40101(a)(1) (mandating safety as the Department of Transportation’s highest priority in air commerce); 49 U.S.C. § 44701(c) (requiring the FAA to regulate in a way to reduce or eliminate accidents). The privilege against disclosure of self-critical analysis should be applied to airlines’ internal safety reviews in recognition and support of the important legislative and human goal of airline safety. The U.S. aviation industry’s safety record is neither accidental nor routine. Indeed, the industry’s safety record is due, in large part, to policies set independently at each airline that require and encourage employees to vigilantly assess day-to-day operational safety for inconsistencies. The ability of airline management to solicit and obtain frank information regarding an airline’s operational safety, and suggestions to improve that safety, is the linchpin of the industry’s enviable record.” Just as there is nothing routine about safety, there is nothing routine about airline internal safety reviews. The airlines’ highest management demand not only consistent internal safety investigations but also special investigations into particular matters that may be of concern. Among federal and state courts that have had to address the self-critical analysis privilege, there is considerable confusion and conflict as to the privilege’s scope and application. As this Court stated in Upjohn Co. v. United States, 449 U.S. 383, 393 (1981): An uncertain privilege, or one which purports to be certain but results in widely varying applications by the courts, is little better than no privilege at all. ? Aircraft manufacturers have similar quality assurance and review programs that solicit safety-related suggestions. 3 In light of this Court’s ruling only last term in Jaffee, v. Redmond, __U.S.__, 116 S.Ct. 1923 (1996), this observation is particularly apropos. The failure of the court below to follow the rationale articulated in Jaffee infects this issue with the uncertainty condemned in Upjohn and jeopardizes the ability of airlines to maintain and improve airline safety. The Court should not allow the present state of disarray to continue. The parameters of the self-critical analysis privilege, over which state and federal courts disagree, presents a compelling issue which this Court should settle under FED. R. Evip. 501. This issue is especially compelling because of the importance of this privilege to promoting practices and procedures in the U.S. airline industry intended to maintain and improve safety. The prevailing confusion and conflict is inconsistent with the kind of candid, thorough, and systematic safety reviews necessary to ensure that air carriers satisfy their "duty . . . to provide service with the highest possible degree of safety in the public interest." 49 U.S.C. § 44701(d)(1)(A). The first part of this brief discusses the failure of the court below to follow Jaffee, the courts’ confusion about the scope and application of the self-critical analysis privilege, and the history of the privilege. The second and third parts discuss the applicability of the privilege in the aviation context and the statutory and regulatory support for the privilege, respectively. 4 INTEREST OF AMICUS CURIAE The ATA is a non-profit unincorporated association of federally-certificated air carriers providing scheduled and charter passenger and cargo air transportation. ATA represents the interests of U.S. airlines’ that account for more than 95 percent of domestic passenger and cargo traffic. Its principal function is to represent the interests of the U.S. commercial airline industry before the United States Congress, federal agencies, state legislatures, and before federal and state courts. ATA works closely with federal agencies concerned with aviation safety and provides a forum in which airlines can discuss and encourage safety initiatives through industry working groups. ATA has filed numerous amicus briefs in federal and state court proceedings concerning a wide variety of issues of interest to its members, including an amicus brief in the court below. 3 ATA’s members are: Alaska Airlines,Inc.; Aloha Airlines, Inc.; America West Airlines, Inc.; American Airlines, Inc.; American Trans Air, Inc; Continental Airlines, Inc.; Delta Air Lines, Inc.; DHL World Airways, Inc.; Evergreen International Aviation, Inc.; Federal Express Corp.; Hawaiian Airlines, Inc.; Kiwi International Airlines, Inc.; Midwest Express Airlines, Inc.; Northwest Airlines, Inc.; Polar Air Cargo, Inc.; Reeve Aleutian Airways, Inc.; Southwest Airlines Co.; Trans World Airlines, Inc.; United Airlines, Inc.; United Parcel Service Co.; and USAir, Inc. Associate members are: Air Canada; Canadian Airlines International; and KLM-Royal Dutch Airlines. 5 ARGUMENT I. THE COURT BELOW FAILED TO FOLLOW PRINCIPLES RECENTLY SET FORTH BY THIS COURT, ADDED TO JUDICIAL CONFUSION, AND FAILED TO RECOGNIZE STATUTORY PUBLIC POLICY GOALS A. The Court Below Failed to Follow This Court’s Decision in Jaffee in Applying the Self-Critical Analysis Privilege Only last term, in Jaffee v. Redmond, _U.S._, 116 S.Ct. 1923 (1996), this Court recognized the existence of a new psychotherapist-patient privilege under FED. R. Evip. 501 and reaffirmed that Congressional intent in drafting Rule 501 was for the "federal courts to continue the evolutionary development of testimonial privileges’". Id. at _, 116 S.Ct. at 1928 (citations omitted). This Court looked to several factors in deciding that * Jaffee was brought under federal question jurisdiction and hence federal common law applied to the privilege under FED. R. Evip. 501. In the instant litigation, federal jurisdiction arose initially out of diversity, although USAir has consistently raised federal preemption as an affirmative defense. While the general rule would be to apply state privilege in diversity cases, “where state and federal issues are commingled . . . [cJourts that have confronted this issue in the context of the discoverability of evidence have uniformly held that the federal law of privilege governs even where the evidence sought might be relevant to a pendant state claim.” 1 MICHAEL H. GRAHAM, HANDBOOK OF FEDERAL EVIDENCE § 501.1, at 511 n.8 (4th ed. 1996). Hence, as in Jaffee, this Court can and should address the federal common law privilege of self-critical analysis under Rule 501. Because of the confusion about the parameters of the self-critical analysis privilege, federal courts, including the district court below, have looked beyond their own jurisprudence for a clear doctrinal rule. See Order of Judge Anderson, Oct 25, 1995, In re Air Crash at Charlotte North Carolina on July 2, 1994 (M.D.L. No. 1041) at 4-5 (Appendix A to USAir’s Petition) (looking to a number of federal appellate and district court decisions rather than North Carolina or South Carolina state law for jurisprudential guidance in applying the self-critical analysis privilege); Siskonen v. Stanadyne, Inc., 124 F.R.D. 610, 611-12 (W.D. 6 the privilege described in Jaffee "’promotes sufficiently important interests to outweigh the need for probative evidence... .”" Id. (citations omitted). Among the factors that counselled for recognition of the new privilege was that psychotherapy "depends upon an atmosphere of confidence and trust in which the patient is willing to make a frank and complete disclosure of facts, emotions, memories, and fears." Jd. That rationale is consistent with Upjohn, where the Court recognized the "Hobson’s choice" facing corporate counsel absent a privilege.° The Jaffee test for the recognition of a privilege is four-fold: (1) The communication must "depend upon an atmosphere of confidence and trust . . . to make a frank and complete disclosure of facts..." Jaffee, U.S. at __, 116 S.Ct. at 1928; (2) The privilege must serve a public interest such as the "transcendent public good" of mental or physical health of the citizenry. /d. at __, 116 S.Ct. at 1929; (3) The public benefits of non-disclosure must outweigh the evidentiary benefit of disclosure so that important communications will not be chilled; and (4) The general support of such privilege in the legislative and judicial communities. Mich. 1989) (looking to federal jurisprudence in diversity case absent precedent under Michigan law). > Upjohn, 449 U.S. at 391. See also Robert J. Busch, Comment, Stimulating Corporate Self-Regulation - The Corporate Self-Evaluative Priviledge: Paradigmatic Preferentialism or Pragmatic Panacea, 87 NW. U.L. REV. 597, 599-600 (1993) [hereinafter Busch, Comment] (noting that corporations are faced with “discordant stimuli” with regulators and consumers calling for "aggressive self-policing” but with “perverse” countervailing incentives that chill such efforts). 7 Airlines’ internal safety audits and investigations meet all of the criteria for application of the self-critical analysis privilege.® 1. Airlines, because they depend so heavily upon the actions of many individual employees for safe operations, must create an “atmosphere of confidence and trust” in order to obtain "frank and complete disclosure of facts" to maintain operational safety and avoid accidents. Airline employees, whether they are investigating an accident, a routine operational procedure, or being interviewed about areas of safety that have attracted the interest of airline management, must be free of the fear that their words and thoughts will be used against the company or themselves in litigation at a later date. Without the privilege, both investigators and interviewees cannot be expected to commit to paper "minor" problems or deficiencies before they become "major" ones, thus depriving airline managements of vital safety-related information and the opportunity to address potential safety issues early and efficiently. Not having this kind of information flow available has been referred to as a "dual chilling effect" because not only does disclosure discourage airlines and their safety personnel from investigating and documenting discrepancies, but also because individual employees may be less willing to come forward with candid information. See Note, The Privilege of Self-Critical Analysis, 96 HARV. L. REV. 1083, 1091-93 (1983) ("Harvard Note"). The same dilemma led the Court to reject the “control group test" of privilege in Upjohn. 2. Maintaining and improving aviation safety is clearly a "transcendent public good.” ° The ultimate balancing of interests for applying self-critical analysis in the context of aviation safety is closely analogous to the balancing of interests with respect to the psychotherapist privilege in Jaffee. This interpretation would in no way be inconsistent with University of Pa. v. EEOC, 493 U.S. 182 (1990), where the crux of the Court’s decision not to recognize a new privilege protecting academic peer review was based on the fact that the public benefit of creating such a privilege was outweighed by the “great, if not compelling, governmental interest” in “ferreting out” invidious discrimination. Jd. at 193. 8 3. In the context of aviation accident litigation, the only reason to discover self-critical analysis is the pursuit of punitive damages because liability is not generally an issue. Punitive damages have never been sustained in such a context. The value of producing such self-critical documents, even assuming they show procedural anomalies, is minimal in comparison with the chilling effect on airline employees discussed above. In Upjohn, the Court allayed concerns about burdening discovery by distinguishing between actual facts an employee would have to disclose and the privileged communications. Upjohn, 449 U.S. at 395-96. Similarly, the self-critical analysis privilege does not hinder discovery of particular facts or access to individuals but protects those documents or meetings relating to safety evaluation and potential areas for change to procedures. See Lloyd v. Cessna Aircraft Co., 74 F.R.D. 518, 521-22 (E.D. Tenn. 1977) (strictly limiting scope of questioning regarding aircraft manufacturer’s list of problem products and prohibiting any discovery relating to meetings designed to "review, analyze, and evaluate operation for continued self-improvement” of products). 4. While application of the self-critical analysis privilege to airline safety audits and investigations is apparently an issue of first impression, both the courts and federal and state legislatures have supported the privilege in analogous safety fields. See, e.g., ASARCO, Inc. v. NLRB, 805 F.2d 194, 199-200 (6th Cir. 1986); Southern Ry. Co. v. Lanham, 403 F.2d 119, 131-33 (Sth Cir. 1968). In addition, virtually every state has adopted the privilege for "medical review boards", another "public safety" area. See 23 CHARLES A. WRIGHT & KENNETH W. GRAHAM, FEDERAL PRACTICE AND PROCEDURE § 5431, 428-442 (Supp. 1996) (summarizing the statutory "medical review" privileges state by state). These privileges are largely synonymous with and have the same origin as the self-critical analysis privilege. See Bredice v. 9 Doctors Hospital Inc., 50 F.R.D. 249, 250-51 (D.C. Cir. 1970), aff'd without opinion, 479 F.2d 920 (D.C.Cir. 1973).’ By failing to apply the standards enunciated in Jaffee to this case, the court below also failed to follow this Court’s clear intent to shield documents meeting the criteria set forth in Jaffee. B. The Failure of the Court Below to Follow Jaffee Adds to the Confusion in the Lower Courts About the Scope and Application of the Self-Critical Analysis Privilege The tests enunciated by various circuits and by numerous district courts has led to a patchwork of rules ill-defining the scope and application of the self-critical analysis privilege. As a result, the courts themselves recognize that they are in disarray.* The federal courts of appeals have either enunciated differing rules of application or declined to rule at all. Thus, in the Fifth Circuit, companies may protect "full and candid evaluations of the cause of accidents . . ." Southern Ry. Co. v. Lanham, 403 F.2d 119, 131 (Sth Cir. 1968), but in the Ninth Circuit, a similar report may not be shielded See Dowling v. American Hawaii Cruises, Inc., 971 F.2d 423, 427 (9th Cir. 1992) ("routine pre-accident 7 Support for applying the self-critical analysis privilege in aviation can be found in Federal law regulating air transportation. See infra Part Ill. Cf. In re United States, 864 F.2d 1153 (Sth Cir. 1989) (granting mandamus to protect from disclosure medical quality assurance records in accordance with 10 U.S.C. § 1102); 38 U.S.C. § 5705(a) (codifying the protected status of quality assurance programs within the Veteran’s Administration hospital system). 5 See In re Grand Jury Proceedings, 861 F. Supp. 386, 387 (D. Md. 1994) (noting that "[t}he Supreme Court and the circuit courts have neither definitively denied the existence of [the self-critical analysis] . . . privilege, nor accepted it and defined its scope"); Culinary Foods, Inc. v. Raychem Corp., 151 F.R.D. 297, 305 (N.D. Ill. 1993) (remarking on “inconsistencies in the district court opinions and the Supreme Courts’ failure to [explicitly] recognize the [self-critical analysis] privilege . . ."); Busch, Comment, supra, at 607-12 (discussing the inconsistent application of the privilege). 10 safety reviews are not protected... ."). In the D.C. Circuit, the privilege may be applied in cases involving public health or safety, First Eastern Corp. v. Mainwaring, 21 F.3d 465, 467 n.1 (D.C. Cir. 1994) (noting that the self-critical analysis privilege "has been found only in limited cases involving areas of public health . . . or public safety”); whereas the Sixth Circuit focused on the requestor. FTC v. TRW, Inc., 628 F.2d 207, 210-11 (D.C. Cir. 1980) (holding that the self-evaluative privilege does not apply where documents are sought by or subpoenaed by government agencies); and the Fourth Circuit in one case focused on whether the reports were prepared for "internal use" only. See Reynolds Metals Co. v. Rumsfield, 564 F.2d 663, 667 (4th Cir. 1977), cert. denied, 435 U.S. 995 (1978). The Dowling case, the latest circuit court decision to address the self-critical analysis privilege in depth, adopted a three-prong test enunciated in a 1983 Harvard Law Review article,’ but also considered the voluntary or involuntary nature of disclosures, the intended use of the documents, and whether the documents were generated prior to or following an accident. Dowling, 971 F.2d at 425-27. Even in Dowling, however, the court wavered about whether it was fair to mandate production of documents the litigant was required by the government to prepare. Jd. at 426-27. * Harvard Note, supra, at 1086 (drawing these three criteria from then- existing case law). The three prongs are: First, the information must result from a critical self-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; finally, the information must be of the type whose flow would be curtailed if discovery were allowed. Id. Seealso Bremv. Decarlo, 162 F.R.D. 94, 101 (D. Md. 1995); Etienne v. Mitre Corp., 146 F.R.D. 145, 147 (E.D. Va. 1993); Granger v. National R.R. Passenger Corp., 116 F.R.D. 507, 509 (E.D. Pa. 1987) (under state law privilege). See also Warren v. Legg Mason Wood Walker, Inc., 896 F. Supp. 540, 541 (E.D.N.C. 1995) (stating similar criteria to the test enunciated in Brem). 11 Other courts have added to, modified, or ignored the three prong self-critical analysis test discussed above, focusing, inter alia on: (1) distinctions between subjective and objective factual information in documents sought to be protected’®; (2) finding post-accident investigations warrant more protection than pre- accident safety reviews''; (3) the voluntary or involuntary nature of disclosure to the government’; (4) whether the government is the party seeking the information; and the type of data sought to be protected." © See O'Keefe v. Boeing Co., 38 F.R.D. 329 (S.D.N.Y. 1965). '! See United States ex rel Falsetti v. Southern Bell Tel. & Tel. Co., 915 F. Supp. 308 (N.D. Fla. 1996) (distinguishing Dowling where a pre-accident safety review was not within the privilege from Reichold Chem., Inc. v. Textron, 157 F.R.D. 522 (N.D. Fla. 1994) where a retrospective self-assessment of environmental damage was privileged). In the aviation context, the notion that pre-accident evaluations are not as protected as post-accident evaluations is equivalent to saying airlines should not attempt to improve safety before an accident. " Compare Dowling, 971 F.2d at 426-27 (noting “It may be unfair for a court to require a party to turn over to an opposing litigant self-damning assessments that the government has required it to prepare.) with Etienne v. Mitre Corp. 146 F.R.D. 145, 148 (E.D. Va. 1993) ("Because such reports and studies are produced involuntarily, there is no reasonable expectation . . . that such material will remain confidential.”). Cf. FAA Advisory Circular (AC) 120-56 (Appendix D to USAir’s Petition) (exempting records voluntarily submitted to the FAA from disclosure under the Freedom of Information Act, 5 U.S.C. § 552(b)(4)). McDonnell Douglas Corp. v. EEOC, 922 F. Supp. 235 (E.D. Mo. 1996) (holding that internal adverse impact analysis studies voluntarily turned over to the EEOC at EEOC’s request could not be disclosed by the EEOC). 3 See, e.g., FTC v. TRW, Inc., 628 F.2d 207, 210-11 (D.C. Cir. 1980) (holding that the self-evaluative privilege does not apply where documents are sought by or subpoenaed by government agencies); In re Grand Jury Proceedings, 861 F. Supp. 386, 388 (D. Md. 1994). 4 See ASARCO, Inc. v. NLRB, 805 F.2d 194, 199 (6th Cir. 1986) (protecting internal safety analysis containing opinions and recommendations but not pictures taken following accident); Lloyd v. Cessna Aircraft Co., 74 F.R.D. 12 The court below has added to this confusion by concluding that the trial court did not abuse its discretion and by failing to give the trial court clear instructions to protect the disputed documents. C. Protection of Airline Internal Safety Investigations from Disclosure is a Matter of Compelling Public Policy The genesis of the self-critical analysis privilege lies in the areas of health and safety. Although Bredice v. Doctors Hospital Inc., 50 F.R.D. 249 (D.D.C. 1970), aff'd without opinion, 479 F.2d 920 (D.C. Cir. 1973), holding that "self analysis" by a medical review committee was privileged, is often considered the first enunciation of the self-critical analysis privilege, that case was predated by cases holding that documents prepared during accident investigations were privileged. See Southern Ry. Co. v. Lanham, 403 F.2d 119, 131 (Sth Cir. 1968) (prohibiting discovery of portions of post-accident reports prepared by claims agents for the railroad, because: "[FJear of discovery might deter [the railroad] from seeking full and candid evaluations of the cause of accidents and the proper disposition of claims"); O’Keefe v. Boeing Co., 38 F.R.D. 329 (S.D.N.Y. 1965); Richards v. Maine Cent. R.R., 21 F.R.D. 590 (D. Me. 1957). Since the 1970s, courts have found that the underlying balance of interests has weighed in favor of the self-critical analysis privilege where the information sought to be protected deals with health or safety issues. See ASARCO, Inc. v. NLRB, 805 F.2d 194, 199-200 (6th Cir. 1986) (holding privileged a "self-critical report" prepared by company after mining accident); Reichhold Chem., Inc. v. Textron, Inc., 157 F.R.D. 522, 526 (N.D. Fla. 1994) ("[t]he public interest in allowing individuals and corporations to candidly assess their compliance with 518, 521-22 (E.D. Tenn. 1977) (differentiating between lists identifying problem products to which limited protection applied and actual minutes or records of internal safety meeeting that were fully privileged). \\ <<