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Police Department Fails To Convince Judge That The So-Called “Self-Critical Analysis Privilege” Applies To An Internal Report, Highlighting The Pitfalls Of The Controversial Privilege

October 23, 2014

Our White Plains civil rights lawyers keep on top of developments in the law concerning lawsuits against the government. The killing of Kenneth Chamberlain, Sr., occurred on November 19, 2011, in White Plains, New York. He was a 68-year-old African American, a former Marine and a 20-year veteran of the Westchester County Department of Corrections. After his Life Aid medical alert necklace was inadvertently triggered, White Plains police officers arrived at his home and demanded to be let in. Chamberlain, who wore the necklace for his chronic heart problem, tried to explain that he did not need help, and he refused to open the door. The police proceeded to break down Chamberlain’s door. They tasered him before shooting him dead.

Kenneth Chamberlain, Sr. was fatally shot on the night of November 19, 2011 in his apartment by officers with the White Plains, NY police department. That evening, police officers responded to an accidental activation of Chamberlain’s medical alert device. When the police arrived on scene the 68-year-old former U.S. Marine Corps officer and 20-year veteran of the Westchester County Department of Corrections, told the officers that there was no need for assistance and that he was fine. The police officers forced entry into the home nonetheless and then tasered him upon entry. According to the complaint, the taser was improperly deployed, after which one of the officers began firing bean bag bullets from a shotgun. Shortly thereafter, an officer fired two shots that killed Mr. Chamberlain. He died several hours later in a local hospital.

In 2012, a Westchester County grand jury found no crime had been committed in the Nov. 19 killing. District Attorney Janet DiFiore called the killing “a tragedy on many levels” but said the grand jury found no reasonable cause for an indictment. The victim’s son, Kenneth Chamberlain Jr., moved forward with lawsuit naming the City of White Plains, the White Plains Housing Authority, and eight members of the White Plains Police Department as defendants.

On September 17, 2014, during the deposition of Police Chief James Bradley, the two parties came to odds over the issue of evidentiary privilege. When something is privileged, the holder of the privilege may refuse to provide evidence about a certain subject or to bar such evidence from being disclosed or used in a judicial or other proceeding. One well known privilege is the attorney-client privilege, protecting confidential communications between a client and his or her legal adviser for the dominant purpose of legal advice. The rationale is that clients ought to be able to communicate freely with their lawyers, in order to facilitate the proper functioning of the legal system.

Here, Chief Bradley’s deposition testimony showed that the White Plains Police Department had performed and internal investigation (an “After Action Report”). The Report had not been produced during discovery in response to Plaintiff’s requests for production. The Defense attorneys indicated that they would instruct Chief Bradley not to answer questions about the content of the Report on the basis of the “self-critical analysis privilege,” a lesser known, and somewhat dubious, privilege. The self-critical analysis privilege applies to those materials created for candid self-assessments and self-evaluations, such as After-Action Reports, which are fairly commonplace in organizations such as the military and law enforcement. The privilege was created for the public policy reason that it is more important for organizations to confidentially evaluate their legal and regulatory compliance than it is for an opposing party to be allowed to use those evaluations in their discovery process. The privilege thus allows organizations and people to self-monitor and improve without fear that these evaluations will become admissible evidence used against them by an opposing party.

Since it originated in 1970, however, most courts have refused to apply the self-critical analysis privilege beyond the peer-review medical context. It is not universally accepted, either. Courts that do choose to apply the privilege will use a balancing test. Unfortunately, this test has not been consistently applied by trial courts, and the results have been conflicting decisions and wildly inconsistent applications of the privilege. Generally speaking, however, Courts that do allow the privilege will first require four criteria before being willing to apply it: (1) The information must result from self-critical analysis performed by the party claiming the privilege; (2) The free flow of this type of information must advance a strong public interest; (3) The information sought must result from the type of analysis that would be curtailed if discovery were allowed; and (4) The document sought to be protected was prepared with the expectation that it would be kept confidential, and in fact has remained so.

In ruling against the Police Department’s right to invoke the privilege, Federal Judge Cathy Seibel of the Southern District of New York, did not explicitly reject the entire privilege, but held that “if it exists, [it] does not apply in this circumstance” for a few reasons. While skeptical on the privilege’s existence within the Circuit’s jurisdiction, the Court was more skeptical of the Defendants’ assertion that discovery of the material would have a chilling effect on the free flow of information necessary to effectively undertake the analysis in question. The Court found them to have failed to demonstrate that the department would be less likely to undertake this type of internal investigation in the future if the resulting after-action reports were discoverable in litigation.

In ordering the report to go forward and be disclosed to the Plaintiff, it seems abundantly clear that the self-critical analysis privilege remains an elusive and tricky privilege, and certainly not something that litigants should rely on when seeking to prevent disclosures in pretrial discovery.

The Law Offices of Michael H. Joseph