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Reichhold Chems., Inc. v. Textron, Inc.

ELR Citation: 25 ELR 20307
Nos. No. 92-30393, 157 F.R.D. 522/39 ERC 1328/(N.D. Fla., 09/20/1994)

The court holds that the owner of a contaminated site may assert a "self-critical analysis" privilege and withhold certain documents pertaining to the contamination from discovery in private litigation. The court first finds that the self-critical analysis privilege should protect an entity's retrospective self-assessment of its compliance with environmental regulations in appropriate cases. The court adopts five criteria to decide when this privilege may be used to withhold documents from discovery. The criteria are: The information to be protected from discovery results from a critical self-analysis undertaken by the party seeking protection, the information is of the type whose flow would be curtailed if discovery were allowed, the information is a retrospective analysis of past conduct, the information is prepared with the expectation that it will be kept confidential, and the information is kept confidential. The court holds that the site owner is entitled to the privilege for those reports that satisfy these criteria. The court also holds that this federal law of privilege governs the entire case and, thus, the documents in question are similarly privileged as to the pendent state-law claims. Finally, the court holds that the party seeking discovery must show exceptional necessity or extraordinary circumstances before the court will order production of the documents.

Counsel for Plaintiff
H. Edward Moore Jr.
Moore, Hill, Westmoreland, Hook & Bolton
Sun Bank Tower
220 W. Garden St., P.O. Box 1792, Pensacola FL 32598
(904) 434-3541

Counsel for Defendants
James M. Wilson
Wilson, Harrell & Smith
307 S. Palafox St., P.O. Box 13430, Pensacola FL 32591
(904) 438-1111