United States District Court, D. Columbia.
CORNELIUS FELDER, as administrator of the estate of Harold Ingram, Plaintiff,
WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY et al., Defendants
CORNIELIUS FELDER, As Administrator of the Estate of Harold
Ingram, Plaintiff: Daniel C. Scialpi, Patrick A. Malone, LEAD
ATTORNEYS, PATRICK MALONE & ASSOCIATES, Washington, DC;
Christopher R. Spinelli, PRO HAC VICE, EMROCH & KILDUFF LLP,
Richmond, VA; William B. Kilduff, EMROCH & KILDUFF, Richmond,
WMATA, Defendant: Barry Donald Trebach, LEAD ATTORNEY,
Nimalan Amirthalingam, BONNER KIERNAN TREBACH & CROCIATA,
LLP, Washington, DC; Kathleen Ann Carey, WASHINGTON
METROPOLITAN AREA TRANSIT AUTHORITY, Washington, DC.
MICHAEL HARVEY, UNITED STATES MAGISTRATE JUDGE.
matter has been referred to the undersigned for the
management of discovery and resolution of all discovery
disputes. Before the Court is plaintiff's motion to
compel defendant Washington Metropolitan Area Transit
Authority (" WMATA" ) to produce a disciplinary
memorandum it issued to its employee, Christopher Hamlin,
relating to the accident at issue in this case. This motion
is ripe for resolution. Upon consideration of the
parties' briefs and the entire record
herein, the Court will grant in part and deny
in part the motion as stated herein.
a wrongful death action against WMATA for the death of a
contractor, Harold Ingram, on a job site. Plaintiff alleges
that on October 6, 2013, a WMATA employee, Christopher
Hamlin, struck and killed the decedent while operating heavy
machinery. The instant dispute focuses on whether WMATA's
disciplinary memorandum against Hamlin related to this
incident is protected by the self-evaluative
filed two motions to compel which covered largely the same
ground. The discovery request at issue here is
plaintiff's Request for Production No. 7(a), which
requests " [t]he entire WMATA employment file, including
all records of performance, supervision, evaluation, and
discipline, for the following individuals involved in the
incident in question: (a) Chris Hamlin." First Mot. to
Compel at 4. On October 27, 2015, Judge Hogan entered an
order granting in part and denying in part plaintiff's
motions. See Oct. 27, 2015 Order. In that order, Judge Hogan
found that several safety reports generated by WMATA after
the accident were protected by the self-evaluative privilege.
Id. at 3. The order did not specifically mention the
parties requested several clarifications of the Court's
order. One of the questions posed by the parties was whether
the disciplinary memorandum should be produced. To resolve
this and future discovery disputes, Judge Hogan referred this
matter to the undersigned on November 17, 2015. The
undersigned held a hearing on November 24, 2015, to discuss
the parties' remaining dispute over the disciplinary
memorandum. At the hearing, the undersigned requested that
WMATA produce several documents for in camera review,
including the disciplinary memorandum and the safety reports
which the Court found to be protected by the self-evaluative
privilege. See Nov. 24, 2015 Minute Order. The undersigned
also ordered WMATA and plaintiff to report on whether and how
disciplinary memoranda have been produced in other cases
brought against WMATA. Id. On November 30, 2015,
WMATA produced the requested documents to the undersigned and
provided a letter reporting on the treatment of disciplinary
memoranda in other cases. On December 3, 2015, plaintiff
submitted a similar letter expressing his view on how such
memoranda have been treated in other cases.
party objects to a request for production of documents under
Federal Rule of Civil Procedure 34(a)(1), the requesting
party may move for an order compelling disclosure of the
withheld material. Fed.R.Civ.P. 37(a). The party that brings
the motion to compel " bears the initial burden of
explaining how the requested information is relevant."
Jewish War Veterans of the United States of America, Inc.
v. Gates, 506 F.Supp.2d 30, 42 (D.D.C. 2007). The burden
then shifts to the non-moving party " to explain why
discovery should not be permitted." Id. If a
party has withheld documents on the grounds that they are
privileged, the withholding party " bears the burden of
proving the communications are protected." In re
Lindsey, 158 F.3d 1263, 1270, 332 U.S.App.D.C. 357 (D.C.
WMATA's Opinions, Characterizations, and Analysis of the
Accident in the Hamlin Disciplinary Memorandum are Protected
by the Self-Evaluative Privilege.
self-evaluative privilege is designed to protect the opinions
and recommendations of corporate employees engaged in the
process of critical self-evaluation of the company's
policies for the purpose of improving health and safety.
Granger v. Nat'l R.R. Passenger Corp., 116
F.R.D. 507, 508 (E.D. Pa. 1987). The privilege seeks to
encourage candid self-criticism. FTC v. T.R.W.,
Inc., 628 F.2d 207, 210, 202 U.S.App.D.C. 207 (D.C. Cir.
1980). The privilege also " prevent[s] a
'chilling' effect on self-analysis and
self-evaluation prepared for the purpose of protecting the
public by instituting practices assuring safer
operations." Granger, 116 F.R.D. at 509. As the Court in
Bradley observed, discovery of self-critical evaluations is
the ultimate benefit to others from this critical analysis .
. . far outweighs any benefits from disclosure. Valuable
criticism could not be obtained under the threat of potential
or possible public exposure for it is not realistic to expect
candid expressions of opinion or suggested changes in
policies, procedures or processes knowing that such
statements or ...