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Felder v. Washington Metropolitan Area Transit Authority

United States District Court, D. Columbia.

December 31, 2015

CORNELIUS FELDER, as administrator of the estate of Harold Ingram, Plaintiff,

          For 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, VA.

         For 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.



         This 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,[1] the Court will grant in part and deny in part the motion as stated herein.


         This is 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 privilege.[2]

         Plaintiff 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 disciplinary memorandum.

         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.


         When a 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. Cir. 1998).


         A. WMATA's Opinions, Characterizations, and Analysis of the Accident in the Hamlin Disciplinary Memorandum are Protected by the Self-Evaluative Privilege.

         The 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 impermissible because

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 ...

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