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ALI v. Long Creek Youth Development Center

United States District Court, D. Maine

January 21, 2019

SADIYA ALI, Plaintiff



         In this civil rights action, the plaintiff, Sadiya Ali, seeks to compel the production by defendants Long Creek Youth Development Center (“Long Creek”) and the Maine Department of Corrections (together, the “State Defendants”) of internal documents generated after the incident giving rise to this action and by Correct Care Solutions, LLC (“CCS”) of peer evaluations of defendants David Drohan, D.D.S., and N.P. Kim Foster. Following oral argument and post-argument letter briefs, see ECF Nos. 45-48, 58-59, I grant the plaintiff's request, concluding that the State Defendants and CCS fail to meet their burden of demonstrating that the self-critical analysis and peer review privileges upon which they rely should be recognized or, as to the former, even if recognized, would shield the documents in dispute.

         I. Applicable Legal Standard

         Rule 26 of the Federal Rules of Civil Procedure outlines general provisions governing discovery in a civil action:

Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.

Fed. R. Civ. P. 26(b)(1).

         “[A] party resisting discovery has the burden of showing some sufficient reason why discovery should not be allowed[.]” Flag Fables, Inc. v. Jean Ann's Country Flags & Crafts, Inc., 730 F.Supp. 1165, 1186 (D. Mass. 1989) (citation and internal quotation marks omitted). In addition, the proponent of a privilege bears the burden of demonstrating entitlement to its protection. See, e.g., In re Keeper of Records (Grand Jury Subpoena Addressed to XYZ Corp.) v. United States, 348 F.3d 16, 22 (1st Cir. 2003) (“Despite a grand jury's vaunted right to every man's evidence, it must, nevertheless, respect a valid claim of privilege. But the party who invokes the privilege bears the burden of establishing that it applies to the communications at issue and that it has not been waived.”) (citations omitted).

         II. Background

         Ali alleges that two guards used excessive force against her 11-year-old son, “A.I., ” while he was in their custody. See Complaint and Demand for Jury Trial (“Compl.”) (ECF No. 1) ¶ 2. She also alleges that the defendants failed to treat A.I.'s Attention Deficit Hyperactivity Disorder during his detention and withheld medical treatment following the alleged use of excessive force. See Id. ¶¶ 2-6. She brings three federal claims (for the use of excessive force in violation of the Fourteenth Amendment, deliberately indifferent medical care in violation of the Fourteenth Amendment, and disability discrimination in violation of the Americans with Disabilities Act and the Rehabilitation Act) and two state law causes of action (for the use of excessive force in violation of Article I, Sections 1, 6, and 6-A of the Maine Constitution, and the negligent use of force, in violation of 14 M.R.S.A. §§ 8101-18). See Id. ¶¶ 118-35.

         The State Defendants invoke the self-critical analysis privilege as the basis for withholding documents and testimony responsive to Ali's requests for “any and all documents concerning A.I., including . . . internal investigations[, ]” ECF No. 45 at 1, and “any actions taken in response” to a September 2017 Center for Children's Law and Policy (“CCLP”) report on Long Creek, ECF No. 52-1, attached to ECF No. 52, at 2, including (i) a “Supervisor's Review - Use of Physical Force” pertaining to the incident involving A.I., ECF No. 46 at [1], and (ii) a “working spreadsheet” created in response to the CCLP report.[1] CCS invokes the peer review privilege as the basis for withholding requested peer review materials concerning two of the individual defendants, David Drohan, D.D.S., and Nurse Practitioner Kimberly Foster. See ECF No. 58 at 1.

         III. Self-Critical Analysis Privilege

         A. Existence of Privilege

         The State Defendants cite two cases in support of their bid for recognition of a privilege for self-critical analysis: Tice v. Am. Airlines, 192 F.R.D. 270 (N.D. Ill. 2000), and In re Block Island Fishing, Inc., 323 F.Supp.3d 158 (D. Mass. 2018). See ECF No. 46 at [2]. They assert that “[t]he privilege is designed to protect parties that engage in post-incident assessments designed to increase safety and decrease the likelihood of repeated incidents[, ]” and that “[c]ourts applying the privilege recognize that an organization's incentive for engaging in frank evaluation of incidents decreases considerably if it knows the evaluation may be used against it in subsequent litigation.” Id.

         However, the State Defendants' own authorities provide scant support for the proposition that this court should recognize such a privilege. In Tice, the court merely assumed “that federal common law recognizes the self-critical analysis privilege[.]” Tice, 192 F.R.D. at 272. And, in Block Island Fishing, the court acknowledged that “[t]he self-critical analysis privilege is not yet clearly established in the First Circuit or elsewhere” and that, “[w]ithin the First Circuit, one district court has applied the privilege to protect certain material from discovery[.]” Block Island Fishing, 323 F.Supp.3d at 160 (citing O'Connor v. Chrysler Corp., 86 F.R.D. 211, 218 (D. Mass. 1980)).

         Supreme Court precedent also militates against the recognition of a self-critical analysis privilege, particularly in these circumstances. In Univ. of Pa. v. EEOC, 493 U.S. 182 (1990), the Supreme Court emphasized that courts should recognize a privilege only when “it promotes sufficiently important interests to outweigh the need for probative evidence[, ]” observing that, because such privileges “contravene the fundamental principle that the public has a right to every man's evidence, any such privilege must be strictly construed.” Univ. of Pa., 493 U.S. at 189 (citations and internal punctuation omitted).

         The State Defendants contend that Univ. of Pa. is distinguishable in that it involved a private entity and documents generated “before the event . . . that formed the basis of the complaint, ” whereas, in this case, the defendants are public entities and the documents at issue were generated after the event. See ECF No. 47 at [1]-[2]. The first distinction cuts against, rather than in favor of, the State Defendants' position, and the second is immaterial.

         Unlike Block Island Fishing and Tice, this case involves the assertion of the privilege by public entities. Compare Block Island Fishing, 323 F.Supp.3d at 160 (claimant, the owner of a tanker, invoked privilege in action brought by owner of a lobster fishing vessel for exoneration or limitation of liability arising from collision between tanker and vessel); Tice, 192 F.R.D. at 271-72 (defendant airline invoked privilege in age discrimination action by airline pilots). The assertion of the privilege by public entities heightens, rather than diminishes, the importance of the discovery of probative evidence. Cf. Soto v. City of Concord, 162 F.R.D. 603, 612 (N.D. Cal. 1995) (declining to recognize self-critical analysis privilege to shield internal police department investigatory documents and witness statements; observing, ...

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