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The “self-critical analysis” privilege cannot be used in a civil rights suit to protect against disclosure of a report detailing the investigation of a high-ranking prison guard where there is no proof that disclosure would chill witnesses in future investigations, and the report has already been disclosed to two plaintiffs’ lawyers, a federal magistrate judge has ruled. In Rodriguez v. County of Northampton, U.S. Magistrate Judge Jacob P. Hart of the Eastern District of Pennsylvania found that the self-critical analysis privilege was originally developed to protect internal hospital reports critiquing the medical care offered by the hospital, and is also commonly invoked by companies seeking to protect their affirmative action documents. But Hart found that neither the 3rd U.S. Circuit Court of Appeals nor any Pennsylvania court has ever addressed whether to extend the privilege to the law enforcement context. Around the country, Hart found that courts have taken a variety of approaches in applying the self-critical analysis privilege in cases involving law enforcement. In Taylor v. Los Angeles Police Department, Hart found that the Central District of California “flatly refused to recognize the existence of the privilege,” and followed the lead of the Northern District of California in holding that the self-critical analysis privilege “should not be applied to police personnel files and records of internal affairs investigations in civil rights suits against police officers.” And in Skibo v. City of New York, Hart noted, the Eastern District of New York held that a police Internal Affairs Division procedural manual and internal evaluations of IAD effectiveness were held discoverable, rejecting an argument under the self-critical analysis privilege based on its balancing of the parties’ interests. Looking for guidance from his colleagues on the Eastern District bench, Hart found that “although the self-critical analysis privilege is recognized in this district, it is not applied with any great enthusiasm.” But Hart found it was unnecessary to predict whether the 3rd Circuit would recognize an extension of the self-critical analysis privilege to a police investigation of one of its personnel. Instead, Hart ruled only that, under the facts of the case, the defendants were entitled only to the protections of a confidentiality order that calls for the redaction of names of anyone interviewed in the investigation. The plaintiff in the suit, Henry J. Rodriguez Jr., claims several prison guards conspired to create a false positive test on one of his drug screenings and then promised that it would “disappear” if Rodriguez gave them information on correctional officers working in the work release program. Plaintiff’s attorney Noah Axler of Pittsburgh-based Buchanan Ingersoll argued that when Rodriguez refused, the guards retaliated and Rodriguez was removed from work release, transferred to Lehigh County Prison in Allentown, Pa., and denied parole. In discovery, Axler obtained a report detailing the results of an investigation of Jose Garcia, the lieutenant in charge of training and professional responsibility and one of the three guards named in Rodriguez’s lawsuit. Defense attorney David P. Karamessinis of Devlin, Devine and Casey moved for a protective order, arguing that the report should not be disclosed because no corrections officer would have “bared his soul” had he known that the report would have become available to the public. Hart found that the report contains summaries of interviews with more than 60 corrections officers and more than 20 inmates and former inmates. Without disclosing any details, Hart also found that it “includes material supportive of Rodriguez’s claims.” Refusing to apply to self-critical analysis privilege to exclude the entire report, Hart found that the defendants made only “very general, factually unsupported, arguments,” as well as the conclusory claim that “to disclose such information now would not only cause difficulties between corrections officers and superiors identified in the report, but would compromise any of the suggestions or recommended changes in the report which might have been useful to the department.” Hart found that such arguments fell short of the test. “General assertions such as this have been found inadequate to support a motion for self-critical analysis protection in a civil rights action,” Hart wrote. “It is far from clear that corrections officers would abstain from frank comment in future reports of this sort,” he wrote. Hart noted that the investigation into Garcia’s conduct was undertaken only after a union vote of no-confidence in Garcia. “To the extent that co-workers lack confidence in the subject of a such a report, it will be in their interests to speak frankly. Prisoners, who were also interviewed, will obviously not be ‘chilled’ by a fear of ‘causing difficulties’ between corrections officers and their superiors,” Hart wrote. Hart also found that the report has already been produced to the plaintiff in another civil rights suit being handled by a different plaintiff’s lawyer, subject to a confidentiality agreement which provides for the redaction of all information which would identify the interviewees. As a result, Hart concluded that “even if material like the … report might otherwise be privileged … there exists the ‘exceptional circumstance’ that the material is already available to the public.”

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