United States Court of Appeals FOR THE EIGHTH CIRCUIT

_____________ No. 96-3288EM

_____________ Frank J. Carman, * * Appellant, * * On Appeal from the United
v. * States District Court for * the Eastern District * of Missouri. McDonnell Douglas Corporation, * * Appellee. *

___________ Submitted: April 14, 1997 Filed: June 11, 1997

___________ Before RICHARD S. ARNOLD, Chief Judge, FAGG and MURPHY, Circuit Judges.

___________ RICHARD S. ARNOLD, Chief Judge.
In Octob er 1992, McDonnell Douglas Aircraft Corporation laid off Fran k Car man as part of a reduction in force of its management staff. Carman then sue d McDonnel l Douglas, claiming that his termination violated the Age Discrimination in Emplo yment

Act, the Missouri Human Rights Act, and the Employee Retiremen t Income Secu rity Act of 1974. In the course of discovery, the District Court denie d Carman’s request for the production of certain documents, holding that they wer e protected by the "Ombudsman Privilege." The District Court later granted summary judgment to McDonnell Douglas, a decision which Carman now appeals. Because we-2-

hold that the District Court lacked sufficient justification for creating an ombudsman privilege and denying Carman's discovery request, we reverse and remand.

I.
In June 1994, Carman requested 54 sets of documents from McDonnell D ouglas. Item No. 53 was a request for "[a ]ll notes and documents reflecting data known to . . . Clemente [a company ombudsman] . . . concerning" the plaintiff, a number of othe r in dividuals, and various topics including "[m]eeting notes regarding lay-offs i n Plaintiff’s Division" and "[m]eeting notes regarding Plaintiff Frank Carman. " Appellant's App. 346-47. McDonnell Douglas objected to this and many ot her requests
as vague, overbroad, and irrelevant, and further objected "with regard to document s known to Therese Clemente because her activ ities as an 'ombudsman' were considered confidential and any information and documents relating to her activities are immune from discovery." Id. at 358. In response, pla intiff filed a motion to compel production of certain documents. The Court granted the motion in part and ordered the defendants to produce a number of documents, including those requested in Item No. 53. Id. at 360. Two months later, however, in clarifying its order with respect to Item No. 53, the Court ruled that " defendant is not required to produce documents protected by the Ombudsman Privilege." Id. at 362. The Court also held that McDonnell Douglas did not have to produ ce adverse impact analyses prepared in anticipation of litigation and l imited Carman's request for information about McDonnell Douglas's past reductions in fo rce to the McDonnell Douglas Aircraft Company, the component company o f McDonnell Douglas Corporation where Carma n worked. In February 1996, the Court granted McDonnell Douglas's motion for s ummary judgment. The Court assumed that Carman had established a prima facie case of age discrimination but held that he had failed to present sufficient evidence that McDonnell Dougla s's stated reasons for laying him off were pretextual. This appeal followed.-3- II.

Carman fi rst contends on appeal that the District Court erred in grantin g summary judgment before

McDonnell Douglas complied with two document requests with respect to which the District Court had granted a motion to compel. The first was a requ est for various employee personnel files. In its order denying plaintiff's motion to amen d or alter the judgment, the District Court found that these records had bee n made a vailable to the plaintiff prior to the deadline for responding to defendant' s summary-judgment motion. This finding was not clearly erroneous, and we uphold it. To estab lish that this material was not available, Carman points to correspondenc e between attorneys which was not before the District Court w hen it ruled on defendant's summary-judgment

motion. We grant defendant's motion to strike this evidence, but also note tha t it does not in any event establish that the District Court's finding wa s clearly erroneous.

The second group of documents at issue was described in a request for "al l employ ee rating and/or ranking lists or documents used in making lay-offs in McAIR [McDon nell Douglas Aircraft Company] and/or MDA-E [McDonnell Dougla s Aero space East] during 1989 through 1993." Appellant's App. 349. It is undispute d that M cDonnell Douglas had not complied with this request before the District Court grante d its summary-judgment motion. The District Court held that, assuming that plaintiff did not have all the information he needed to resp ond to defendant’s summaryjudgment motion, his failure to file a Rule 56(f) affidavit explaining why mor e disc overy was needed defeats any argument that summary judgment was premature

. We c annot say that the District Court abused its discretion in holding Carman to th e requiremen ts of Rule 56(f). Nothing in this opinion should be read to prevent th e District Court from giving Carman the op portunity on remand to explain why he needs this information.Though it is not e ntirely clear from the record whether this is still the case, the 1 head of the ombudsm an office at McDonnell Douglas Aircraft Company in 1991 held the position of company vice-president. See Kientzy v. McDonnell Dougla s Corp. , 133 F.R.D. 570, 572 (E.D. Mo. 1991).
-4- With respect to the adverse-impact analyses that the District Court protecte d from discovery, Carman argue s that even if they were privileged, McDonnell Douglas shouldstill have produced the data underlying the analyses. As McDonnell Douglas po ints out, however, other documents that the District Court required McDonnel l Douglas to produce would have provided plaintiff with the equivalent of the dat a underlying the adverse-impact analyses.

The District Court al so did not abuse its discretion in limiting Carman's request for information about past McDonnell Douglas reductions in force to the division i n whic h he worked. Company-wide statistics are usually not helpful in establishin g pretext in an employment-discrimination case, because those who make employment decisions vary across divisions. Absent some more particularized argument fro m plaintiff as to how such informatio n might have helped in this case, we cannot say that the District Court abused its discretion in limiting the scope of Carman's discovery request.

III.

We now turn to the issue of the "ombudsman privilege." In the context of this case, the term "ombudsman" refers to an employee outside of the corporate chain o f command whose job is to i nvestigate and mediate workplace disputes. The corporate 1 ombu dsmanis paid by the corporation and lacks the structural independence tha t characterizes government ombudsmen in some countries and states, where the office of ombudsman is a separate b ranch of government that handles disputes between citizens and government agencies. Nonetheless, the corporate ombudsman purports toThough neither party addresses the issue in any depth, McDonnell Dougla s 2 seems to argue that the District Court's decision to recognize the pr ivilege is reviewable only for abuse of dis cretion. We believe, to the contrary, that the scope of a privilege and the decision whether to establish a new privilege are mixed questions of fact and law which we review de novo

. -5- be an independent and neutral party who promises strict conf identiality to all employees and is bound by the Code of Ethics of the Corporate Ombudsman Association, which
re quires the ombudsman to keep communications confidential. McDonnell Dougla s arg ues for recognition of an evidentiary privilege that would protect corporat e ombudsme n

from having to disclose relevant employee communications to civi l litigants. 2

Federal Rule of Evidence 501 states that federal courts should recogniz e evide ntiary privileges according to "the principles of the common law" interpreted "in the light of reason and experience." The beginning of any analysis under Rule 501 is the principle that "the public has a right to every man's evidence." Hardwicke, L.C.J., quoted in 12 Cobbett's Parliamentary History 675, 693 (1742) (quoted with approval in Unit ed States v. Bryan , 339 U.S. 323, 331 (1950)). Accordingly, evidentiar y privileges "are not lightly cre ated." United States v. Nixon , 418 U.S. 683, 710 (1974). A party that seeks the creation of a new evidentiary privilege must overcome th e si gnificant

burden of establishing that "permitting a refusal to testify or excludin g
re levant evidence has a public good transcending the normally predominant principl e of utilizing all rational means for ascertaining truth." Trammel v. United States , 44 5 U.S. 40, 50 (1980) (quoting Elkins v. United States , 364 U.S. 206, 234 (1960 ) (Frankfurter, J., dissenting)).

The first important factor for assessing a proposed new evidentiary privilege is the importance of the relationship that the privilege will foster. The defendant argues that ombudsmen help resolve workplace disputes prior to the commencement o f expensive and time-consuming litigation. We agree that fair and efficient alternative-6-

dispute resolution techniques benefi t society and are worthy of encouragement. To the ext ent that corporate ombudsmen successfully resolve disputes in a fair and efficien t manner, they are a welcome and helpful addition to a society that is weary of lawsuits.
Nonetheless, far more is required to justify the creation of a new evidentiary privilege. First, McDonnell Douglas has failed to present any evidence, and indeed has not even argued, that the ombudsman method is more succes sful at resolving workplace disputes than other forms of alternative dispute resolution, nor has i t even pointed to any eviden ce establishing that its own ombudsman is especially successful at resolvin g workplace disputes prior to the commen cement of litigation. In recognizing a privilege forthe McDonnell Douglas ombudsman's office in 1991, the court in Kientzy v

. McDonnell Douglas Corp. , 133 F.R.D. 570, 572 (E.D. Mo . 1991), found that the office had received approximately 4,800 communications since 198 5, but neither the court nor McDo nnell Douglas in the present case provides us with any context to evaluate th e significance of this statistic.
Second, McDonnell Douglas has failed to make a compel ling argument that most of the ad vantages afforded by the ombudsman method would be lost without th e privile ge. Even without a privilege, corporate ombudsmen still have much to offe r employees in the way of confidentiality, for they are still able to promise to kee p employee communications con fidential from management. Indeed, when an aggrieved
em ployee or an employee-witness is deciding whether or not to confide in a company ombudsman, his greatest con cern is not likely to be that the statement will someday be revealed in civil discovery. More likely, the employee will fear that the ombudsman is biased in f

avor of the company, and that the ombudsman will tell managemen t
ev erything that the employee says. The denial of an ombudsman privilege will no t affect the ombudsman's ability to convinc e an employee that the ombudsman is neutral, and cre ation of an ombudsman privilege will not help alleviate the fear that she is not.-7-

We are especi ally unconvinced that "no present or future [McDonnell Douglas] emp loyee could feel comfortable in airing his or her disputes with the Ombudsma n because of

the specter of discovery." See Appellee's Br. 45. An employee either will or will not have a meritorious complaint. If he does not and is aware that he does not, he i s no more likely to share the frivolousness of his complaint with a compan y ombudsman than he is with a court. If he has a meritorious complaint that he woul d prefer no t to litigate, then he will generally feel that he has nothing to hide and will be undeterredby the prospect of civil discovery from sharing the nature of his complaint with the ombudsman. Th e dim prospect that the employee's complaint might someday surface in a n unrelated case strikes us as an unlikely deterrent. Again, it is th e perception that the ombudsman is the company's investigator, a fear that does no t depend upon the prospect of civil discovery, that is most likely to keep such a n employee from speaking openly.
McDonnell Douglas also argues that failure to recognize an ombud sman privilege will disrupt the relationship between management and the ombudsm an's office. In cases where management has nothing to hide, this is unlikely. It is probably true tha t
mana gement

will be less likely to share damaging information with an ombudsman i f there is no privilege. Nonetheless, McDonnell Douglas has provided no reason t o believe that management is especially eager to confess wrongdoing to ombu dsmen when
a privilege exists, or that ombudsmen are helpful at resolving disputes that involv e vi olations of the law by management or supervisors. If the chilling of management

ombudsman communications occurs only in ca ses that would not have been resolved at the ombudsman stage anyway, then there is no reason to recognize an ombudsma n privilege.

McDonne llDouglas relies on the analysis of the court in Kientzy , supra , appare ntly one of only two federal courts to have recognized a corporate-ombudsmanThe other case is Roy v. United Technologies Corp. , Civi l No. H-89-680 (JAC) 3 (D. Conn., May 29, 1990). -8- privilege. Wedo not find the reasoning of that opinion convincing. For example, the

3 Kientz y opinion argues that confidentiality is essential to ombudsman-employe e relationships because the function of that relationship is to "rec eive communications and to remedy workplace problems, in a strictly confidential atmosphere. Without thi s confidentiality, the office would just be one more non-confidential opportunity fo r employees to air disputes. The ombudsman's office provides an opportunity fo r complete disclosure, without the specter of retaliation, that does not exist in the other available, non-confidential grievance and complaint procedures." 133 F.R.D. at 572. As we have said, the corpo rate ombudsman will still be able to promise confidentiality in most circumstances even with no privilege. To justify the creation of a privilege , McDonne llDouglas must first establish that society benefits in some significant wa y fr om the particular brand of confidentiality that the privilege affords. Only then can a court decide whether the advantages of the proposed privilege overcome the stron g presumption in favor of disclosure of all rel evant information. The creation of a wholly new evidentiary privilege is a big step. This record does not co nvince us that we should take it.

IV.
We disagree wi th the District Court's holding that employee communications to Therese Cl emente were protected from discovery by an ombudsman privilege. Th e judgment is reversed, and the cause remanded for further proceedings consistent with this opinion. On remand, the District Court should order the production of the evidence it had believed the privilege protected, unless there are other reasons why discovery of this evide nce would not be appropriate. It should then reconsider its ruling o n defendant's motion for summa ry judgment in light of this new evidence and the parties' arguments with respect to its significance.-9-

It is so ordered.
A true copy.

Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.