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United States District Court for the Northern District of Florida, Pensacola Division
September 20, 1994, Decided ; September 20, 1994, Filed; September 21, 1994, Entered
CASE NO. 92-30393-RV
Pending is the motion of plaintiff Reichhold Chemicals, Inc. for a protective order exempting certain documents from discovery. (doc. 200). In accordance with the matters discussed at the hearing held on May 3, 1994, these documents have been submitted for in camera [**7] review.
[*524] I. BACKGROUND
On June 5, 1984, plaintiff Reichhold Chemicals, Inc. ("Reichhold") entered into a Consent Order with the Florida Department of Environmental Regulation obligating it to undertake various measures to investigate and remediate the contamination of groundwater on and under, and storm water runoff from, an industrial plant site it owns in Pensacola, Florida. For over 60 years, various parts of this site have been utilized by many former owners for manufacturing purposes, resulting in a myriad of environmental problems. Reichhold has since taken a number of costly steps to meet its obligation under the consent order.
On October 16, 1992, Reichhold brought this action against eight separate defendants, most of whom are former owners of at least some of the site, to recover its current and anticipated response costs. The fifteen count complaint purports to assert claims under the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA") [42 U.S.C. §§ 9607(a), 9613(f)], claims under various Florida statutes, and claims based on common law causes of action, including indemnification, strict liability, nuisance, [**8] negligence, trespass, restitution, and breach of contract.
In March 1993, Reichhold produced approximately 35,000 pages of material in response to discovery requests. Subsequently, Reichhold distributed a privilege log that identified certain documents that had not been produced, which Reichhold asserted were privileged, and the privilege purportedly applicable to each document. Reichhold asserted that thirteen documents were protected from discovery exclusively by the privilege of self-critical analysis. 1 Reichhold has moved for a protective order exempting these documents from discovery. Defendants Textron, Inc.; Ashland Oil, Inc.; Archer-Daniels-Midland Co.; and Quantum Chemical Corp. (collectively "defendants") oppose the motion for a protective order on two grounds. Initially, they note that the privilege of self-critical analysis, also known as the self-evaluative privilege, while adopted in some other jurisdictions, is an issue of first impression in this court, and they urge that I not recognize the privilege. The defendants also assert that, assuming the privilege applies to the federal claims, it is inapplicable to the state law claims.
[**9] II. SELF-CRITICAL ANALYSIS PRIVILEGE
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157 F.R.D. 522 *; 1994 U.S. Dist. LEXIS 13806 **; 29 Fed. R. Serv. 3d (Callaghan) 1153; 39 ERC (BNA) 1328; 25 ELR 20307
REICHHOLD CHEMICALS, INC., Plaintiff, v. TEXTRON, INC., TENNESSEE GAS PIPELINE CO., ARCHER-DANIELS-MIDLAND CO., ASHLAND OIL, INC., ARMSTRONG WORLD INDUSTRIES, INC., BURLINGTON NORTHERN RAILROAD CO., QUANTUM CHEMICAL CORP., and JOHN DOES NUMBERS 1 THROUGH 15, Defendants. ASHLAND OIL, INC., QUANTUM CHEMICAL CORP, and TEXTRON, INC., Third Party Plaintiffs, v. CITY OF PENSACOLA, Third Party Defendant.
self-critical, discovery, documents, environmental, self-evaluation, privileged, courts, confidential, investigations, retrospective, state law claim, federal claim, pollution
Civil Procedure, Discovery, Privileged Communications, General Overview, Evidence, Government Privileges, Official Information Privilege, Self-Critical Analysis Privilege, Privileges, Admissibility, Conduct Evidence, Subsequent Remedial Measures, Rule Application & Interpretation, Discovery & Disclosure, Relevance of Discoverable Information, Governments, Legislation, Effect & Operation, Retrospective Operation, Preliminary Considerations, Federal & State Interrelationships, Erie Doctrine, Subject Matter Jurisdiction, Federal Questions, Supplemental Jurisdiction, Pendent Claims, Courts, Authority to Adjudicate, Criminal Law & Procedure, Reviewability, Preservation for Review, Exceptions to Failure to Object