United States District Court

For the Northern District of California

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

C-09-1669 ORDER DENYING MOTION FOR PROTECTIVE ORDER Page 1 of 4

 

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

David Jewell,

Plaintiff,

v.

Polar Tankers Inc, et al.

Defendants.

________________________________/

No. C 09-1669 JL

ORDER DENYING MOTION FOR

PROTECTIVE ORDER (Docket # 19)

I. Introduction

This Court has original jurisdiction over this maritime personal injury case under the

Jones Act, 46 U.S.C. §30104. All parties consented to this Court’s jurisdiction under 28

U.S.C. §636(c).

Defendants’ motion for protective order was initially submitted in a five-page joint

statement by the parties but the Court ordered the parties to brief the matter fully, in light of

the complexity and novelty of the legal issues. The parties submitted supplemental briefs

and responses in response to the Court’s order and the matter came on for hearing. Lyle C.

Cavin, Jr. appeared for Plaintiff and Max Kelley, appeared for Defendants. After the

hearing, Defendant filed under seal a copy of the IIR and a Supplemental Declaration by

Defendants’ in-house counsel, Katharine F. Newman. The Court carefully considered the

briefing and arguments by counsel and the post-hearing submissions and hereby denies

Case 3:09-cv-01669-JL Document 31 Filed 04/08/10 Page 1 of 4
United States District Court

For the Northern District of California

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

C-09-1669 ORDER DENYING MOTION FOR PROTECTIVE ORDER Page 2 of 4

the motion. Defendants shall produce to Plaintiffs the person most knowledgeable (“PMK”)

with regard to post accident root cause analysis and any documentation of corrective action

prior to and after Plaintiff’s injury. In connection with the deposition, Defendants shall also

produce any and all documents drafted by the PMK or others relating to post accident root

cause analysis. Compliance shall be due within ten days of issuance of this order.

II. Analysis

A. Neither the U.S. Supreme Court nor the U.S. Court of Appeals for the

Ninth Circuit recognize the self critical analysis privilege

Defendant claims that the Incident Investigation Report, (“IIR”) prepared after

the accident is protected by the “self-critical analysis” privilege (“SCA”), Defendant

relies on Dowling v American Hawaii Cruises, Inc., 971 F.2d 423 (9th Cir. 1992) as the

basis for the existence of the privilege in the 9th Circuit, as well as for their position that the

privilege applies to their IIR.

However, Dowling does not stand for the creation of such a privilege in the Ninth

Circuit, but acknowledges that presently there is no such privilege. The court in Dowling

held that “Even if such a privilege exists, the justifications for it do not support its application

to voluntary routine safety reviews.” Id. (Emphasis added.) A more recent Ninth Circuit

case holds that the privilege has never been recognized by that court or any other court in

Oregon or California. Union Pacific Railroad Company v Brent Mower, 219 F.3d 1069 (9th

Cir. 2000).

Furthermore, when faced with a claim of the privilege, the court in Dowling refused

to apply it, citing the US Supreme Court’s longstanding view that the policy favoring open

discovery requires privileges must be “strictly construed.” The US Supreme Court

further held that the privilege is not authorized by Congress and not “sufficiently

important to outweigh the need for probative evidence.” University of PA v EEOC, 493

U.S. 182, 189 (1990).

There is no basis for applying the privilege in this jurisdiction. There is a “well

recognized federal policy of promoting broad pre-trial discovery...” Boyd v City of New

Case 3:09-cv-01669-JL Document 31 Filed 04/08/10 Page 2 of 4
United States District Court

For the Northern District of California

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

C-09-1669 ORDER DENYING MOTION FOR PROTECTIVE ORDER Page 3 of 4

York, 1987 WL 6915 at 1 (S.D.N.Y Feb.11, 1987). Further, privileges are “not lightly

created, nor expansively construed, for they are in derogation of the search for truth.” U.S.

v Nixon, 418 U.S. 683, 710 (1974). While some Circuits have recognized the existence of a

self critical analysis privilege, the majority have declined to do so. The Ninth Circuit has

never recognized it and the US Supreme Court has disavowed it. The state courts in

California have similarly rejected its existence. There is no reason for this court to grant

such extraordinary relief to Defendants and create the privilege in the Ninth Circuit.

B. The IIR is not subject to the attorney-client privilege.

Typically, an eight-part test determines whether information is covered by the

attorney-client privilege: (1) Where legal advice of any kind is sought (2) from a

professional legal adviser in his capacity as such, (3) the communications relating to that

purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently

protected (7) from disclosure by himself or by the legal adviser, (8) unless the protection be

waived. In re Grand Jury Investigation, 974 F.2d 1068, 1071 n. 2 (9th Cir.1992) The party

asserting the privilege bears the burden of proving each essential element. United States v.

Munoz, 233 F.3d 1117, 1128 (9th Cir.2000). 

In a case concerning a claim of attorney-client privilege for an internal corporate

investigation, the court of appeals very recently reaffirmed the burden on the party

asserting attorney-client privilege and the strict limits on its scope and application. The

court in U.S. v. Ruehle held that the privilege should be strictly construed and limited in

scope. In particular, the mere submission of a report to an attorney for review does not

render the communication privileged. U.S. v. Ruehle, 583 F.3d 600, 607 -608 (9th Cir.

2009).

This Court, with these principles in mind, carefully considered the parties’ briefing

and arguments on this issue and reviewed the IIR, and Supplemental Declaration of

Defendant’s in-house counsel, Katharine F. Newman, both submitted under seal. The Court

concludes after its review that the attorney-client privilege does not apply to the IIR in

question. 

Case 3:09-cv-01669-JL Document 31 Filed 04/08/10 Page 3 of 4
United States District Court

For the Northern District of California

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

C-09-1669 ORDER DENYING MOTION FOR PROTECTIVE ORDER Page 4 of 4

III. Conclusion and Order

For the reasons stated above, the court hereby denies Defendants’ Motion for a

Protective Order. Defendants shall produce to Plaintiff the person most knowledgeable

(“PMK”) with regard to post accident root cause analysis and any documentation of

corrective action prior to and after Plaintiff’s injury. In connection with the deposition,

Defendants shall also produce any and all documents drafted by the PMK or others relating

to post accident root cause analysis. Compliance shall be due within ten days of issuance

of this order.

DATED: April 8, 2010

__________________________________

 James Larson

 United States Magistrate Judge

G:\JLALL\CASES\CIVIL\09-1669\Order Deny 19-short.wpd

Case 3:09-cv-01669-JL Document 31 Filed 04/08/10 Page 4 of 4