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English v. Washington Metropolitan Area Transit Authority

United States District Court, District of Columbia

October 13, 2017

CHIMWALA F. ENGLISH, Plaintiff,
v.
WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY, Defendant.

          MEMORANDUM OPINION

          ROBIN M. MERIWEATHER UNITED STATES MAGISTRATE JUDGE.

         Three 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.

         BACKGROUND

         Factual and Procedural History[1]

         On the 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.

         On 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.

         In 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.

         Ms. 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.

         The 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.

         On July 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.

         LEGAL STANDARDS

         I. Motion to Compel Responses to Interrogatories and Requests for Production

         Under 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).

         A party 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).

         Where a 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 (D.D.C. 2016).

         II. Motion for Protective Order

         Under 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).

         DISCUSSION

         “The 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.

         Fed. R. 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.

         I. Motion to Compel Further Responses To Written Discovery

         Ms. 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 following:

. 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; and
. A response to Plaintiff s second set of interrogatories.

Pl.'s Mot. to Compel 1-2; Pl.'s Mem. in Support of Mot. to Compel (“MTC Mem.”), ECF No. 12-1.

         Ms. 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.[2] 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.

         A. WMATA's Assertion of Privileges to Redact Responsive Documents

         Ms. 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 Incident.

         MTC 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.

         WMATA 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. See id.

         When a 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).

         1. Self-Evaluative Privilege

         WMATA 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)).

         This 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.

         Although 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)).

         WMATA 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;[3] and (2) post-accident remedial measures and actions taken by WMATA.[4] 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 sought”).

         Ms. 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.

         Given 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.[5] 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.

         Distinguishing 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 recommendations.

         The 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 document-by-document basis.

         Accident Report Form

         WMATA has redacted several sections of the Accident Report Form. See ECF No. 12-4 at 3-6; ECF No. 23-1 at 2-5.[6] 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;[7] 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.

         Some of 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.

         WMATA 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.

         Report for Incident

         WMATA 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.[8] See id.

         Remedial Bus Operator Training Form

         WMATA 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 ...


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