United States District Court, District of Columbia
CHIMWALA F. ENGLISH, Plaintiff,
WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY, Defendant.
M. MERIWEATHER UNITED STATES MAGISTRATE JUDGE.
discovery motions are pending before the Court. Plaintiff
Chimwala F. English (“Plaintiff” or “Ms.
English”) filed a Motion to Compel [ECF No. 12], which
challenges the completeness of Defendant Washington
Metropolitan Area Transit Authority's
(“Defendant” or “WMATA”) responses to
certain interrogatories and requests for production of
documents. WMATA filed a Motion for Protective Order [ECF No.
15], which seeks to prohibit Ms. English from taking a
Federal Rule of Civil Procedure 30(b)(6) deposition of
designated WMATA employees. Ms. English opposed that motion
and filed a Cross-Motion to Compel WMATA's Deposition
[ECF No. 17], which seeks to compel Defendant WMATA to
designate and produce a witness to appear and testify at the
30(b)(6) deposition. The District Judge presiding over this
case has referred all discovery disputes to the undersigned
Magistrate Judge pursuant to Local Civil Rule 72.2(a).
See Order, ECF No. 21. Having reviewed the
parties' written submissions, the arguments presented at
the July 17, 2017 motions hearing, and the entire record
herein, the Court will grant-in-part and deny-in-part Ms.
English's Motion to Compel [ECF No. 12], deny
Defendant's Motion for Protective Order [ECF No. 15], and
grant Ms. English's Cross-Motion to Compel [ECF No. 17]
for the reasons set forth below.
and Procedural History
morning of September 3, 2015, Reginald Burrell boarded WMATA
Bus 2360. Compl. ¶ 7, ECF No. 1. Mr. Burrell felt
lightheaded, and subsequently informed the WMATA bus driver
that he was not feeling well. Id. ¶¶ 8,
10. Mr. Burrell exited the bus at the next stop from the
passenger side door. Id. Upon exiting, Mr. Burrell
attempted to steady himself by leaning on the side of the
bus. Id. ¶ 11. Shortly thereafter, the bus
driver began to drive away from the curb. Id. ¶
12. Mr. Burrell was dragged under the rear right portion of
the bus and injured. Id. ¶ 13. After the
accident Mr. Burrell was taken to Washington Hospital Center,
where he remained until he died on September 8, 2015.
Id. ¶ 17.
November 28, 2016, Ms. English, daughter of Reginald Burrell,
filed this action against WMATA alleging negligence and
negligence per se in claims for wrongful death and a
survival action. See Compl. Ms. English asserts that
the incident on September 3, 2015 (“the
Incident”) was the direct, sole, and proximate result
of the negligence of WMATA's bus driver. Id.
¶¶ 21, 58. Ms. English alleges that the bus driver
owed Mr. Burrell “a duty of care to operate the WMATA
bus in a proper fashion with the degree of care and skill
that a reasonably competent driver would have exercised under
similar circumstances.” Id. at ¶¶
22, 59. Ms. English contends that WMATA, through its bus
driver, breached the applicable duties and standards of care
owed to Mr. Burrell and thus was negligent, negligent per
se, or both. Id. at ¶¶ 51, 87. WMATA
admits that at all relevant times the bus driver was acting
within the scope of his employment as a WMATA bus operator,
but denies that it or the driver was negligent. Answer 2-3,
ECF No. 5.
April 2017, after the parties notified the Court that they
had a pending discovery dispute, Judge Amy Berman Jackson
referred that dispute to the undersigned for resolution.
See Referral to Magistrate Judge Order, ECF No. 9.
The parties filed a joint Status Report outlining the nature
and scope of outstanding discovery disputes, and the
undersigned subsequently held a Telephonic Discovery
Conference. See Status Report, ECF No. 10; April 19,
2017 Minute Entry. At that conference, the Court set a
schedule for briefing of the outstanding discovery disputes.
English subsequently filed a Motion to Compel [ECF No. 12],
WMATA sought a Protective Order to preclude a Rule 30(b)(6)
deposition [ECF No. 15], and Ms. English cross-moved to
compel WMATA to produce a witness for the 30(b)(6) deposition
[ECF No. 16]. The Motion to Compel concerns WMATA's
responses to a number of Ms. English's interrogatories
and requests for production of documents. In that motion, Ms.
English requests that WMATA produce a privilege log that
fully complies with the Federal Rules of Civil Procedure,
requests an in camera review of redacted documents
to ensure that all non-privileged information has been
released to Plaintiff, and seeks to compel WMATA to provide
relevant and discoverable information and documents in
response to her interrogatories and requests for production.
See Pl.'s Mot. to Compel 1-2, ECF No. 12.
Motion for Protective Order seeks to prohibit Ms. English
from taking a Rule 30(b)(6) deposition for which WMATA was
asked to designate one or more witnesses to testify regarding
eighteen topics. See Mot. for Protective Order of
WMATA 1 (Def.'s Mot. for Protective Order), ECF No. 15
& Ex. 1, ECF No. 15-2 (Notice of Fed.R.Civ.P. 30(b)(6)
Dep. of Def. Wash. Metro. Area Transit Auth.). In its motion,
WMATA challenges the scope of Ms. English's request for a
30(b)(6) deposition and questions the deposition's
purpose, indicating that it duplicates other discovery
requests and appears intended to burden or harass.
See Def.'s Mot. for Protective Order 2. In her
response, Ms. English cross-moves to compel the deposition.
See Pl.'s Opp'n to Def.'s Mot. for
Protective Order and Cross-Mot. to Compel WMATA's Dep. 9,
ECF Nos. 16 & 17.
6, 2017, Judge Jackson expanded the referral to encompass the
resolution of all discovery disputes. See Order, ECF
No. 21. The undersigned held a motions hearing on July 17,
2017, and on July 18, 2017 requested supplemental briefing
regarding the applicability of the work product protection.
See Order, ECF No. 25.
Motion to Compel Responses to Interrogatories and
Requests for Production
Federal Rule of Civil Procedure 37, a party seeking discovery
through an interrogatory under Rule 33 or the production of
documents under Rule 34, and who believes that the opposing
party has failed to meet its obligations under the relevant
Rules, may - after conferring in good faith with the opposing
party - seek to compel a response. See Fed. R. Civ.
P. 37(a)(1), 37(a)(3)(B)(iii)-(iv). To satisfy Rule 33,
“[a] party to whom an interrogatory is propounded
‘must provide true, explicit, responsive, complete, and
candid answers.'” Guantanamera Cigar Co. v.
Corporacion Habanos, S.A., 263 F.R.D. 1, 7
(D.D.C. 2009) (quoting Equal Rights Ctr. v. Post Props.,
Inc., 246 F.R.D. 29, 32 (D.D.C. 2007)); see
Fed. R. Civ. P. 33(b)(3) (“Each interrogatory must, to
the extent it is not objected to, be answered separately and
fully in writing under oath.”). A party served with
Rule 34 requests for production must produce or allow
inspection of the requested records unless it has asserted a
viable objection. See Fed. R .Civ. P. 34(b)(2). Rule
37 further provides that evasive or incomplete answers or
responses to written discovery requests will be treated as a
failure to answer or respond. Fed.R.Civ.P. 37(a)(4).
may serve written interrogatories or requests for production
provided such requests fall within the scope of Rule 26(b).
Fed.R.Civ.P. 33(a)(2) (“An interrogatory may relate to
any matter that may be inquired into under Rule
26(b)”); Fed.R.Civ.P. 34(a) (“A party may serve
on any other party a request within the scope of Rule
26(b)”). Rule 26(b) permits parties to “obtain
discovery regarding any nonprivileged matter that is relevant
to any party's claim or defense and proportional to the
needs of the case.” Fed.R.Civ.P. 26(b)(1).
relevance objection has been raised, the moving party seeking
to compel discovery “must demonstrate that the
information sought to be compelled is discoverable.”
Meijer, Inc. v. Warner Chilcott Holdings Co., III,
245 F.R.D. 26, 30 (D.D.C. 2007); see also Felder v. Wash.
Metro. Area Transit Auth., 153 F.Supp.3d 221, 224
(D.D.C. 2015). Once that showing has been made, “the
burden shifts to the non-moving party ‘to explain why
discovery should not be permitted.'”
Felder, 153 F.Supp.3d at 224 (quoting Jewish War
Veterans of the U.S., Inc. v. Gates, 506 F.Supp.2d 30,
42 (D.D.C. 2007)); see also United States v. All Assets
Held at Bank Julius Baer & Co., 202 F.Supp.3d 1, 6
Motion for Protective Order
Federal Rule of Civil Procedure 26, a party may move for a
protective order “on matters relating to a
deposition.” Fed.R.Civ.P. 26(c)(1). “[F]or good
cause, ” the court may “issue an order to protect
a party or person from annoyance, embarrassment, oppression,
or undue burden or expense.” Id. The party
requesting the protective order bears the burden of showing
good cause. Alexander v. FBI, 186 F.R.D. 71, 75
(D.D.C. 1998). In meeting this burden, the party “must
make a specific demonstration of facts in support of the
request as opposed to conclusory or speculative statements
about the need for a protective order and the harm which will
be suffered without one.” Alexander, 186
F.R.D. at 75; see also Huthnance v. Dist. of
Columbia, 255 F.R.D. 285, 296 (D.D.C. 2008).
Federal Rules of Civil Procedure encourage the exchange of
information through broad discovery.” In re
England, 375 F.3d 1169, 1177 (D.C. Cir. 2004).
Specifically, Rule 26 permits parties to:
obtain discovery regarding any nonprivileged matter that is
relevant to any party's claim or defense and proportional
to the needs of the case, considering the importance of the
issues at stake in the action, the amount in controversy, the
parties' relative access to relevant information, the
parties' resources, the importance of the discovery in
resolving the issues, and whether the burden or expense of
the proposed discovery outweighs its likely benefit.
Civ. P. 26(b)(1); see also Pederson v. Preston, 250
F.R.D. 61, 63-64 (D.D.C. 2008). The discovery objections at
issue in the pending motions primarily concern privilege and
relevance. Each motion will be addressed in turn below.
Motion to Compel Further Responses To Written
English contends that WMATA has “failed to comply with
its discovery obligations and wrongfully withheld plainly
discoverable materials.” Pl.'s Mot. to Compel 1,
ECF No. 12. Specifically, Ms. English moves to compel the
. A privilege log that fully complies with
Federal Rule of Civil Procedure 26(b)(5)(A);
. Disclosure of any non-privileged material
that WMATA redacted from its discovery responses;
. Production of all documents in response to
Ms. English's Requests for Production 3, 7, 10, 11, 12,
14, 15, 18, and 24;
. Substantive responses to Ms. English's
Interrogatories 2, 5, 6, 8, 9, 11, 12, 13, 19, 21, and 23;
. A response to Plaintiff s second set of
Pl.'s Mot. to Compel 1-2; Pl.'s Mem. in Support of
Mot. to Compel (“MTC Mem.”), ECF No. 12-1.
English's request for a privilege log that fully complies
with the Federal Rules of Civil Procedure is moot because
WMATA provided a revised privilege log under seal, to both
Ms. English and the Court, on July 13, 2017. See Am.
Privilege Log, ECF No. 23. The portion of the Motion to Compel
that seeks a response to Plaintiffs second set of
interrogatories also has been rendered moot by intervening
events; at the July 17, 2017 Motions Hearing, Plaintiffs
counsel advised the Court that WMATA had responded to
Plaintiffs Second Set of Interrogatories. Therefore, the
following analysis addresses only the dispute regarding
WMATA's response to Ms. English's requests for
production of documents and her first set of interrogatories.
WMATA's Assertion of Privileges to Redact Responsive
English challenges WMATA's redaction of documents that
are responsive to Plaintiffs Interrogatory 2. See
MTC Mem. 5. Plaintiffs Interrogatory 2 seeks the following:
Interrogatory 2: Identify and describe in
detail all information regarding the Incident communicated or
provided by you (or anyone acting on your behalf) to, or for
the benefit of, the United States Department of
Transportation, including the Federal Motor Carrier Safety
Administration, relating, reflecting or referring to the
Mem. 5. The redacted documents responsive to that
interrogatory include documents from an “investigative
file” produced to Ms. English as part of WMATA's
initial disclosures and a Safety Report later produced by
WMATA in response to Plaintiff's Interrogatory 2. See
Id. at 5- 6.
relies primarily on the self-evaluative privilege to redact
information from the responsive documents, and also has
redacted information that it describes as work product,
“post-remedial measures, ” and
“Confidential Employee Numbers.” See Am.
Privilege Log; see also Opp'n to Pl.'s Mot.
to Compel Ex. 1 (“Privilege Log”), ECF No. 13-1.
Ms. English disputes the applicability of the privileges and
protections asserted. See MTC Mem. 5-7. Accordingly,
Ms. English requested that the Court undertake an in
camera review to determine whether the redacted
information is privileged and then order WMATA to release to
Plaintiff any information that was improperly withheld.
party claims a privilege as the basis for withholding
documents, that party “bears the burden of proving the
communications are protected.” Felder, 153
F.Supp.3d at 224 (quoting In re Lindsey, 158 F.3d
1263, 1270 (D.C. Cir. 1998)); see also United States v.
Legal Servs. for N.Y.C., 249 F.3d 1077, 1081 (D.C. Cir.
2001). To carry that burden, the party asserting the
privilege must “present the underlying facts
demonstrating the existence of the privilege, ” and
“conclusively prove each element of the
privilege.” In re Lindsey, 158 F.3d at 1270
(internal quotation marks and citation omitted). “[T]he
proponent of a privilege . . . must offer more than just
conclusory statements, generalized assertions, and unsworn
averments of its counsel.” United States v. ISS
Marine Servs., Inc., 905 F.Supp.2d 121, 127 (D.D.C.
2012) (internal quotation marks and citation omitted). If the
party asserting the privilege fails to present sufficient
facts to allow the Court to “state with reasonable
certainty that the privilege applies, this burden is not
met.” FTC v. TRW, Inc., 628 F.2d 207, 213
(D.C. Cir. 1980) (emphasis added).
relies principally on the self-evaluative privilege as
justification for its redaction of documents from the
investigative file. See Am. Privilege Log 1-2;
Privilege Log 1- 2. The self-evaluative privilege
“encourage[s] confidential self-analysis and
self-criticism” by shielding from discovery documents
that reflect the conclusions an entity has reached as part of
its internal investigation or evaluation of certain incidents
or conduct. First E. Corp. v. Mainwaring, 21 F.3d
465, 467 (D.C. Cir. 1994) (quoting TRW, Inc., 628
F.2d at 210) (internal quotation marks omitted); see also
Felder, 153 F.Supp.3d at 224-25. The privilege reflects
courts' recognition that “it is not realistic to
expect candid expressions of opinion or suggested changes in
policies, procedures or processes knowing that such
statements or suggestions may very well be used against
colleagues and employees in subsequent litigation.”
Felder, 153 F.Supp.3d at 225 (citing Bradley v.
Melroe Co., 141 F.R.D. 1, 3 (D.D.C. 1992)).
Court first recognized the self-evaluative privilege in
Bredice v. Doctors Hospital, where the privilege was
held applicable to hospital staff meeting notes documenting
physicians' retrospective reviews and critiques of the
treatment and care provided by their colleagues. 50 F.R.D.
249, 251 (D.D.C. 1970). In Bredice, the Court found
“an overwhelming public interest in having those staff
meetings held on a confidential basis so that the flow of
ideas and advice can continue unimpeded, ” and
therefore concluded that the records should not be
discoverable absent “extraordinary
circumstances.” Id. Courts evaluating claims
of the self-evaluative privilege have considered similar
public policy concerns, assessing whether the value of candid
and comprehensive self-evaluations outweighs a
requestor's need for the information. See Martin v.
Potomac Elec. Power Co., Nos. 86-0603, 87-1177, 87-2094,
88-0106, 1990 WL 158787, at *3 (D.D.C. May 25, 1990)
(unpublished); Wainwright v. Wash. Metro. Area Transit
Auth., 163 F.R.D. 391, 396; see also Bradley,
141 F.R.D. at 3.
parties rarely succeed in invoking the self-evaluative
privilege, the cases where the privilege has been applied
share common traits. First, the D.C. Circuit has suggested
that the self-evaluative privilege should apply only in cases
that implicate public health or safety. Mainwaring,
21 F.3d at 467 n.1; see also Wade v. Wash. Metro. Area
Transit Auth., No. Civ. 01-0334, 2006 WL 890679, at *5
(D.D.C. Apr. 5, 2006) (citing Mainwaring) (noting
that “the [D.C. Circuit] would be reluctant to expand
[the self-evaluative privilege] beyond cases involving public
health or safety”). Second, the applicability of the
privilege frequently turns on whether a “document was
created for the purpose of retrospective self-criticism to
improve health and safety.” Felder, 153
F.Supp.3d at 227; see also Wade, 2006 WL 890679, at
*5 (citing Mainwaring, 21 F.3d at 467 n.1);
Wainwright, 163 F.R.D. at 396. Members of this Court
also have required that the privileged document be “a
critique submitted as part of a mandatory government
report.” Wainwright., 163 F.R.D. at 396;
see also Mahnke v. Wash. Metro. Area Transit Auth.,
821 F.Supp.2d 125, 150 n.16 (D.D.C. 2011) (quoting
Wainwright's standard but declining to rule on
the applicability of a self-evaluative privilege);
Martin, 1990 WL 158787, at *3; cf. Felder,
153 F.Supp.3d at 227 (questioning whether a document must be
submitted as part of a mandatory government report to qualify
for the self-evaluative privilege). Finally, the privilege
applies only to the conclusions, subjective judgments, or
mental impressions reached during the evaluative process, and
“does not protect purely factual material appearing
alongside self-critical analysis.” Felder, 153
F.Supp.3d at 225; see also Martin, 1990 WL 158787,
at *3 n.4. In these cases, courts have concluded that the
privilege is necessary to avoid a “chilling
effect” that otherwise might hinder a company or public
entity from engaging in self-critical analysis.
Felder, 153 F.Supp.3d at 225 (quoting Granger v.
Nat'l R.R. Passenger Corp., 116 F.R.D. 507, 509
(E.D. Pa. 1987)).
invokes the self-evaluative privilege to redact portions of
reports and other documents prepared as part of its
post-accident investigation of the Incident. See Am.
Privilege Log; Privilege Log. WMATA argues that
“[r]equiring [it] to produce the mental impressions,
conclusions and opinions of WMATA personnel and consulting
experts who evaluated the incident and made decisions on how
to make the work environment safer would chill and deter
future evaluations aimed at improving WMATA's
safety.” Opp'n to Pl.'s Mot. to Compel 3-4
(“Def.'s Opp'n”), ECF No. 13. Citing
precedent applying the self-evaluative privilege to
recommendations and conclusions made during post-accident
evaluations, WMATA contends that it properly redacted
portions of records from the investigative file that reflect:
(1) recommendations, conclusions, and the results of
WMATA's investigation or review; and (2) post-accident
remedial measures and actions taken by WMATA. See
Felder, 153 F.Supp.3d at 226-28 (finding that the
self-evaluative privilege applied to recommendations and
conclusions in a disciplinary memorandum that was prepared as
part of a post-accident safety evaluation); Gilbert v.
WMATA, No. 85-535, slip op. at 1 (D.D.C. Sept. 3, 1986)
(applying self-evaluative privilege to materials from safety
evaluation after finding that the “public policy
exception encouraging evaluations and improvements to safety
outweighs the plaintiff's needs for the materials
English concedes that the self-evaluative privilege applies
to any self-critical analysis and conclusions that appear in
the redacted documents, and therefore does not challenge
WMATA's redactions of such information. Instead, she
seeks only “all factual information that may
be contained in the redacted reports WMATA has
produced.” Pl.'s Reply in Further Support of
Pl.'s Mot. to Compel Disc. Resps. 3 (“Pl.'s
Reply”), ECF No. 14 (emphasis in original); see
also MTC Mem. 6-7.
that Ms. English does not challenge WMATA's redaction of
any self-critical analysis and conclusions, the Court need
not determine whether the self-evaluative privilege protects
those portions of the redacted documents. Instead this case
presents the narrower question of whether the redactions
include factual information that is outside the scope of the
self-evaluative privilege. WMATA contends that all the
redacted information is evaluative and thus not discoverable.
between factual and evaluative information is more complex
than it may initially appear. While some information may be
purely factual or purely evaluative, other information falls
on a continuum between those two extremes. For example, a
document may contain factual information regarding actions an
entity takes in response to an incident that, if disclosed,
would implicitly reveal the self-critical analysis,
evaluation, or conclusions upon which the decision to take
those actions was based. Compelling the disclosure of such
information would defeat the purpose of the self-evaluative
privilege. On the other hand, some actions responsive to an
incident may be as consistent with a positive self-evaluation
as with a negative one; in those cases, disclosing the action
would not reveal the conclusions drawn in the underlying
self-critical analysis. Accordingly, when determining whether
the self-evaluative privilege applies to the redacted
documents, the Court focused on the impact that disclosure of
the redacted material would have, and applied the privilege
to information whose disclosure would reveal WMATA's
self-critical evaluation, conclusions, or safety
Court's in camera review of the redacted
documents, analyzed under the foregoing legal standards,
reveals that the self-evaluative privilege applies to some,
but not all, of the information that WMATA has redacted.
While reviewing the claim of privilege, the Court also
remained mindful that privileges generally are narrowly
construed and that WMATA bears the burden of proving that the
self-evaluative privilege applies here. See United States
v. Nixon, 418 U.S. 683, 710 (1974) (“Whatever
their origins, these exceptions to the demand for every
man's evidence are not lightly created nor expansively
construed, for they are in derogation of the search for
truth.”); In re Sealed Case, 676 F.2d 793,
806-07 (D.C. Cir. 1982) (noting that “courts are
careful to construe recognized privileges narrowly”);
Coastal States Gas Corp. v. Dep't of Energy, 617
F.2d 854, 862 (D.C. Cir. 1980). The specific rationale for
applying or disallowing the privilege is explained below on a
has redacted several sections of the Accident Report Form.
See ECF No. 12-4 at 3-6; ECF No. 23-1 at
Some of the redacted material contains the conclusions drawn
in WMATA's evaluation of the Incident, the disclosure of
which would reveal WMATA's internal self-critical
analysis; the self-evaluative privilege shields that
information from discovery. See Felder, 153
F.Supp.3d at 226-28 (finding that the self-evaluative
privilege applied to recommendations and conclusions in a
disciplinary memorandum that was prepared as part of a
post-accident safety evaluation); Gilbert v. WMATA,
No. 85-535 (D.D.C. Oct. 9, 1986) (recognizing that the
privilege applies to WMATA safety evaluations and candid
self-criticism of WMATA employees). Accordingly, WMATA
properly redacted the following portions of the Accident
Report Form: on page three of ECF No. 12-4, the first four
boxes in the line that commences with box number 1 and all of
box number 16 except the last five words; on page four of ECF
No. 23-1, all of the redacted material; and on page six
of ECF No. 12-4, all of the redacted material except for the
four lines of text in the final redacted paragraph.
the redacted material simply identifies the nature of certain
proposed remedial actions and contains no self-critical
analysis. WMATA argues that its recommendations and proposed
remedial actions are privileged because their disclosure
“would chill and deter future evaluations aimed at
improving WMATA's safety.” Def.'s Opp'n
3-4. But the proposed remedial actions at issue would
logically follow any accident, regardless of who is at fault.
Consequently, the fact that WMATA recommended or took those
actions does not reveal the nature or outcome of WMATA's
self-critical assessment of the Incident, and disclosing
those recommendations should not chill candid and objective
self-evaluation. This material is, therefore, outside the
scope of the self-evaluative privilege and is discoverable
unless another privilege applies. See generally
Felder, 153 F.Supp.3d at 228 (concluding discipline
imposed by WMATA was factual and thus must be disclosed to
the plaintiff); Sutton v. Wash. Metro. Area Transit
Auth., Civil Action No. 07-1197, slip op. at 3-4 (D.D.C.
Dec. 17, 2007) (concluding self-evaluative privilege did not
extend to factual information concerning actions WMATA took
after an accident). Accordingly, WMATA improperly invoked the
self-evaluative privilege to withhold the following portions
of the Accident Report Form: on page three of ECF No. 12-4,
the last five words in box numbers 16; and on page six of ECF
No. 12-4, the four lines of text located above
“Employee's Comments” and at the bottom of
the redacted section.
also redacted portions of the Accident Report Form containing
information about the driver's appeal rights. WMATA
already has disclosed to Ms. English that the bus driver
filed an appeal, by releasing with minimal redactions a
document titled “Accident Appeal Form” wherein
the driver states that he “disagree[s] with the rating
of the accident.” ECF No. 12-4 at 3. That disclosure
waived any self-evaluative privilege that arguably might
protect information regarding the driver's right to
appeal. See generally In re Sealed Case, 121 F.3d
729, 741 (D.C. Cir. 1997) (noting, in the context of
executive and deliberative process privileges, that the
release of a document waives the privilege for the document
or information specifically released); Ivy Sports Med.,
LLC v. Sebelius, No. 11-CV-1006 RLW, 2012 WL 5248176, at
*2 (D.D.C. Oct. 24, 2012) (unpublished) (noting waiver of
deliberative process privilege where information was made
public). Even if WMATA had not waived the privilege,
disclosing the driver's right to appeal would not reveal
any self-critical analysis. Accordingly, WMATA improperly
relied on the self-evaluative privilege to redact the
following portions of the Accident Report Form: on page three
of ECF No. 12-4, box numbers 14 and 15 and the row of text
between box 15 and box 16.
also invoked the self-evaluative privilege as a basis for
redacting two partial lines of text in the “Report for
Incident.” See ECF No. 12-4 at 7. The text
following “Response Level, ” if disclosed, would
reveal information about the conclusions drawn during
WMATA's assessment of the Incident; therefore it was
properly redacted pursuant to the self-evaluative privilege.
See Id. However, the information redacted in the
text immediately following “B47546” would not
reveal any analysis or conclusions, self-critical or
otherwise; therefore that text must be disclosed to Ms.
English unless another privilege protects it. See id.
Bus Operator Training Form
also contends that the self-evaluative privilege applies to
portions of the “Remedial Bus Operator Training
Form.” See ECF No. 12-4 at 14-15. The first
redacted line on pages 14 and 15, immediately below
“Activity Details, ” simply duplicates
information that appears in unredacted form elsewhere in the
document. Therefore WMATA has waived the self-evaluative
privilege even if it otherwise might have protected this
information. Moreover, these lines contain factual
information regarding training, and the fact that training
may have occurred does not disclose any self-critical
analysis. Similarly, the remaining redactions of text under
the categories “Start Date”, “End
Date”, “Date”, “Start Time”,
“End Time”, “Time Zone”, and
“Location” consist of purely factual information
which, if ...