PRIVILEGE IN INTERNAL AND GOVERNMENT INVESTIGATIONS ABA MIDYEAR CONFERENCE February 3, 2012 Mor Wetzler Jena A. Sold Paul Hastings LLP New York, NY Copyright 2012. All rights reserved. LEGAL_US_E # 96047971.2
PRIVILEGE IN INTERNAL AND GOVERNMENT INVESTIGATIONS In discovery, parties often dispute the privilege of certain documents or communications, and losing parties may be forced to turn over crucial or harmful documents. When a party claims privilege, a central issue becomes whether that party has disclosed the privileged material to anyone who could break the privilege. The issue of waiver is further complicated in the context of internal or government investigations, where a party may have incentives to cooperate with the investigating authority. When cooperating with the investigating authority involves potentially waiving the privilege, the party must balance its desire to cooperate with the risk that its waiver may affect future investigations or litigation. These materials provide an overview of the attorney-client privilege and then turn to privilege in the context of government and internal investigations, including a discussion of the selective waiver doctrine and the self-evaluative privilege. 1. Attorney-Client Privilege: Back to Basics The traditional privileges that accompany the attorney-client relationship are the attorney-client privilege, which attaches to confidential communications between the parties, and work product protection, which prevents third parties from discovering the work produced by an attorney in anticipation of litigation. These privileges have a longstanding tradition in the U.S. legal system; however, both are capable of being waived through disclosure to non-privileged parties. a. Attorney-Client Privilege The attorney-client privilege provides absolute protection to most confidential communications between clients and their lawyer. By assuring confidentiality, the privilege encourages clients to make complete disclosures to their attorneys, who are then better able to provide candid advice and effective representation. Thus, the privilege is a response to the concern that lawyers cannot help their clients if the clients worry that third parties might later learn what the clients disclose to their lawyers. This privilege is codified in the federal rules. Rule 26(b)(1) of the Federal Rules of Civil Procedure provides that Parties may obtain discovery regarding any matter, not privileged... ; Rule 501 of the Federal Rules of Evidence, in turn, provides that the privilege of a witness... shall be governed by the principles of the common law. The typical formulation of the attorney-client privilege under federal common law extends protection to communications between a client and a lawyer where: (1) Legal advice of any kind is sought, (2) from a professional legal advisor in his or her capacity as such, (3) the communications relate to that purpose, (4) are made in confidence, LEGAL_US_E # 96047971.2 1
(5) by the client, and (6) the confidentiality of the communications have not been waived. 1 Stated differently, the attorney-client privilege protects confidential communications by a client to an attorney made in order to obtain legal assistance from the attorney in his or her capacity as a legal adviser, as well as the advice given by the lawyer in the course of representing the client. This definition necessarily excludes certain communications between client and attorney. For example, the privilege protects only the communications pertaining to legal advice, and not the underlying facts. 2 As the Supreme Court explained in Upjohn: The client cannot be compelled to answer the questions, What did you say or write to the attorney?, but may not refuse to disclose any relevant fact within his knowledge merely because he incorporated a statement of such fact into his communication with his attorney. 3 Clients and attorneys alike must bear this important fact in mind: merely conveying something to an attorney will not prevent the underlying facts from compelled disclosure if they can be discovered from a nonprivileged source. b. Attorney Work Product The attorney work product immunity arises from the same fundamental concerns underlying the attorney-client privilege and seeks to avoid invading an attorney s trial preparation. In Hickman v. Taylor, the Court held that memoranda, statements and mental impressions fell outside of the attorney-client privilege but nevertheless determined they were worthy of protection from discovery by opposing counsel. 4 To meet this perceived need for protection from discovery, the Hickman court established a work product privilege, which is now embodied in Federal Rule of Civil Procedure 26(b)(3). The rule limits the discoverability of materials prepared in anticipation of litigation or for trial; often, the protection turns on whether the documents were prepared in anticipation of litigation, since many courts consider the remote possibility of litigation as insufficient to protect documents from discovery. Work product immunity is different in both nature and scope from the attorneyclient privilege. For instance, work product immunity belongs to the attorney, not the client. It is described as qualified in contrast to the absolute attorney-client privilege because certain circumstances may override the immunity. 5 This situation arises if the party seeking the information can show a substantial need for the materials and is unable without undue hardship to obtain substantially equivalent information by other means. However, even where discovery is ordered, courts must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party 1 8 Wigmore on Evidence 2292. 2 Upjohn Co. v. United States, 449 U.S. 383, 389 (1981). 3 Upjohn, 449 U.S. at 396. 4 329 U.S. 495 (1947). 5 See In Re Sealed Case, 856 F. 2d 268 (D.C. Cir. 1988). LEGAL_US_E # 96047971.2 2
concerning the litigation. Still, in other respects, work product immunity is broader than attorney-client privilege. For example, work product is not limited to information or materials gathered or assembled by or under the supervision of a lawyer. Thus, the privilege extends even to the client s work product, as long as it was prepared with an eye toward litigation. c. Waiver of Privilege Because a core element of any privilege is the confidential nature of the communication, the privilege may be waived by disclosure to a third party. The third party s presence waives the privilege attached to an attorney-client communication unless the party is a representative of the attorney or client, has a common legal interest, or in some jurisdictions, is an agent of the attorney or client. Likewise, the protections afforded attorney work product can be waived if the work product loses confidentiality through disclosure to a third party. While waivers of privilege through disclosure come in many forms, an important distinction for determining the effect of a particular disclosure is whether the disclosure was intentional or inadvertent. Many waiver cases involve unintentional waiver in the course of discovery productions. The approaches to inadvertent waiver vary by jurisdiction and fall into three schools of thought. The most lenient approach, followed by the Eighth Circuit, considers that to err is human and finds that waiver requires an intentional and knowing relinquishment. Therefore, an inadvertent disclosure can only constitute a waiver if it occurs through the gross negligence of the client; an attorney s negligence cannot waive the privilege. In contrast, the harshest approach, followed by the Federal Circuit, First Circuit and D.C. Circuit, applies a strict accountability. In these jurisdictions, confidentiality cannot be restored once it is lost, and the privilege is waived even if the disclosure was inadvertent. The third and more moderate approach is embodied by the Federal Rules of Evidence. Rather than take an absolute position on the waiver issue, this approach weighs several factors, including: (1) reasonableness of precautions; (2) the time taken to rectify the error; (3) the scope of the discovery; (4) the extent of the disclosure; and (5) the overriding issue of fairness. 6 Moreover, under this approach, the consequences of the waiver range from the limited waiver of a particular piece of information, to subject matter waiver for all items related to the relevant issue, to a complete waiver for the entire data collection. 6 Federal Rule of Evidence 502(b). LEGAL_US_E # 96047971.2 3
2. Protecting Privilege in Government Investigations 7 Waiver of attorney-client privilege and work product protection is a recurring issue in the context of government investigations. As a number of government agencies reward cooperation with reduced penalties and other incentives, parties may feel pressure to share helpful and sometimes privileged information with the government. As a result, certain courts have recognized a selective waiver doctrine, where disclosure of privileged material to the government in the course of an investigation does not waive privilege in other contexts. This section will consider government policies on waiver and explore the selective waiver doctrine. a. History and Overview of Government Policies There is no uniform policy on waiver of privilege among government agencies. However, largely in response to backlash against policies viewed as coercing investigation targets into waiver, more recent policies appear to emphasize disclosure of the underlying factual information rather than the privileged communication or product itself. The policies of the Department of Justice and Securities and Exchange Commission are considered as representative below. i. Department of Justice The waiver of privilege controversy largely began in 1999 when Attorney General Eric Holder, then deputy attorney general, articulated guidelines on indicting companies. Later memorialized in the Thompson Memorandum, these guidelines directed prosecutors to consider a company s willingness to waive privilege when determining whether to indict that company. In 2006, the court in U.S. v. Stein criticized this policy, dismissing charges against thirteen KPMG defendants who argued that the DOJ violated their rights by pressuring KPMG to stop paying their legal bills to curry favor with prosecutors and avoid prosecution. Subsequently in 2006, days after Congress introduced legislation to overturn the Thompson Memorandum, the DOJ revised its guidelines for charging companies. The McNulty Memorandum required prosecutors to obtain approval from senior supervisors before making waiver demands. Further, [p]rosecutors generally should not take into account whether a company is advancing attorneys fees to employees or agents under investigation and indictment. In 2008, on the same day the Second Circuit upheld the U.S. v. Stein decision, the DOJ issued the Filip Memorandum, which shifted emphasis from waiver of privilege to disclosure of relevant facts. While the Filip Memorandum stated that waiving the attorneyclient and work product protections has never been a prerequisite under the Department's prosecution guidelines for a corporation to be viewed as cooperative, it acknowledged that previous policies were viewed as coercive. Thus, the memo stated that prosecutors should not 7 These materials are of limited scope and thus do not address several issues that counsel must keep in mind during a government investigation, including, inter alia, Fifth Amendment protections, cooperation between government agencies, and multiple strategy considerations. LEGAL_US_E # 96047971.2 4
ask for such waivers and are directed not to do so. Instead, the company may cooperate by disclosing facts relevant to the investigation, and may be rewarded for such disclosure. ii. Securities and Exchange Commission The SEC s current position on waiver of attorney-client privilege similarly emphasizes disclosure of pertinent facts rather than privileged material, but still differs from the DOJ s policy. The SEC first articulated its position in the 2001 Seaboard Report, in which the SEC discussed its decision not to bring an enforcement action against a public company whose subsidiary had misstated its financial records. The purpose of the Seaboard Report was to identify some of the criteria [the SEC would] consider in determining whether, and how much, to credit self-policing, self-reporting, remediation and cooperation in deciding whether to bring an enforcement action. One factor emphasized by the SEC was whether the company made available the results of any internal review; voluntarily revealed information the SEC staff did not request and otherwise might not have uncovered ; and instructed its employees to cooperate with SEC staff. The Report acknowledged in a footnote that waiver of attorney-client privilege and work product protection may be a means (where necessary) to provide relevant and sometimes critical information to the Commission staff. Based on this Report, many criticized the SEC as compelling waiver of the privilege by, in essence, labeling companies that resisted waiver as uncooperative. 8 The SEC has not officially retracted the position articulated in the Seaboard Report. However, in 2008, the SEC released its Enforcement Manual, which guides its staff in their investigation of potential violations of federal securities laws. Section 4.3 of the current Enforcement Manual, titled Waiver of Privilege, instructs the staff not [to] ask a party to waive the attorney-client privilege or work product protection without prior approval of the Director or Deputy Director. Thus, in contrast with the DOJ position, the SEC permits its staff to request waiver with prior approval. The manual further clarifies that cooperation and waiver of privilege are not synonymous: Voluntary disclosure of information need not include a waiver of privilege to be an effective form of cooperation and a party s decision to assert a legitimate claim of privilege will not negatively affect their claim for cooperation. However, it still reiterates the Seaboard Report s position that waiver of attorney-client privilege may be a necessary means to provide critical information to the SEC. b. Selective Waiver Traditionally, a company s decision to share privileged material with the government would waive privilege over that material as to all third parties. Recently, however, some courts acknowledged that this policy of absolute waiver deters cooperation with government investigations, and so articulated a selective waiver doctrine that seeks to limit the consequences of such disclosure. 8 See COMM. ON FED. REGULATION OF SEC., AM. BAR ASS N, ATTORNEY-CLIENT PRIVILEGE AND SEC EXAMINATIONS 2 (2008). LEGAL_US_E # 96047971.2 5
i. Selective Waiver Overview The premise of selective waiver is that a party s disclosure to a government entity performing investigatory functions does not waive the confidential, and hence privileged or protected, quality of the information. 9 Thus, a party s provision of certain information to the government in the course of an investigation does not necessarily make that information accessible to a third party. The courts that recognize this doctrine view selective waiver as means by which to promote corporate investigations and government cooperation. 10 Affording a party limited waiver of a privilege in this context is designed to allow a party to share information with investigators without fear that future third-party litigants can claim waiver of the privilege. However, many courts have rejected this reasoning and refuse to reinterpret the traditional limitations of privilege to accommodate the selective waiver doctrine. ii. Judicial Acceptance of Selective Waiver The selective waiver doctrine originated in the Eighth Circuit, where the court in Diversified Industries, Inc. v. Meredith considered whether a corporation that shared privileged material with the SEC in response to an agency subpoena effectively waived its claim of privilege. 11 In a conclusory statement, the court held that the disclosure effected only a limited waiver because the corporation disclosed these documents in a separate and nonpublic SEC investigation. The court reasoned that to hold otherwise would dissuade corporations from engaging independent outside counsel to investigate and advise them on critical matters. The Eighth Circuit is the only circuit to embrace the selective waiver doctrine so wholeheartedly. A number of circuits have rejected wholesale application of selective waiver, including the D.C., First, Second, Third, Fourth, Sixth and Federal Circuits. In the context of attorney-client privilege, the D.C. Circuit criticized the rationale underlying the Eighth Circuit decision, emphasizing that, while voluntary cooperation with government investigations may be a laudable activity, it has nothing to do with the underlying rationale for attorney-client privilege, which is to improve[] the attorney-client relationship. 12 The court also criticized the tactical nature of a party s assertion of privilege following cooperation with the government: the selective waiver doctrine permits litigants to invoke the privilege as to communications whose confidentiality he has already compromised for his own benefit. Many other circuits have adopted this reasoning. 13 The Third Circuit echoed both points made by the D.C. court, characterizing the Eighth Circuit s cooperation rationale as 9 See In re Qwest Commc ns Int l Inc., 450 F.3d 1179 (10th Cir. 2006). 10 See Nolan Mitchell, Preserving the Privilege: Codification of Selective Waiver and the Limits of Federal Power over State Courts, 86 B.U. L. REV. 691, 702 (2006). 11 572 F.2d 596 (8th Cir. 1977). 12 Permian Corp. v. United States, 665 F.2d 1214 (D.C. Cir. 1981). 13 For a more comprehensive discussion of courts positions on selective waiver, see Mitchell, supra note 9. LEGAL_US_E # 96047971.2 6
irrelevant and underscoring the deliberate nature of the party s disclosure. 14 The Sixth Circuit, among its many grievances with the selective waiver doctrine, also emphasized that any promise of confidentiality by the government is immaterial; parties cannot contract around attorney-client privilege, a common law right. 15 Thus, voluntary disclosure of privileged material breaks the privilege, even when disclosure was pursuant to a confidentiality agreement. However, certain circuits appear to assume a more flexible approach, leaving open the possibility that selective waiver is appropriate in limited circumstances. For instance, decisions by the First and Second Circuits suggest that the presence of a confidentiality agreement between the parties may influence a finding of selective waiver. The Second Circuit also alluded to selective waiver when the government and disclosing party share[d] a common interest in developing legal theories. 16 Another potential factor may be whether there is a substantial need for disclosure the less strategic a party s disclosure, the more likely the material will remain privileged. 17 With respect to waiver of attorney work product immunity, courts have taken equally varied but different approaches. Surveying the various circuits, the Tenth Circuit concluded that the Fourth Circuit approved of selective waiver for opinion work product only (as compared to non-opinion work product); the Third, Sixth and Eighth Circuits rejected the concept; and the D.C. and Second Circuits dismissed selective waiver in specific cases but left open the possibility that it might apply in other circumstances. 18 After further discussion, the Tenth Circuit itself declined to adopt the selective waiver doctrine as an exception to the general rules of waiver upon voluntary disclosure of protected material. In intriguing commentary, however, the Tenth Circuit left open the possibility that a new privilege might someday be created for materials produced in government investigations. iii. Practical Implications Despite the case-by-case approach apparently assumed by certain courts, the circumstances under which these courts will find selective waiver remain unclear. As a result, companies must evaluate carefully the value of asserting selective waiver when deciding if to disclose privileged materials in the context of a government investigation. Nor should practitioners rely on a confidentiality agreement between the company and the government agency to protect the privilege of attorney-client communications or work product. While the effect of a confidentiality agreement is an open question in some circuits, other courts have made clear that this has no impact on privilege analysis. 14 Westinghouse Elec. Corp. v. Philippines., 951 F.2d 1414 (3d Cir. 1991). 15 In re Columbia/HCA Healthcare, 293 F.3d 289 (6th Cir. 2002). 16 In re. Steinhardt Partners, L.P., 9. F.3d 230 (2d Cir. 1993). 17 Mitchell, supra note 11, at 716. 18 See Qwest, 450 F.3d at 1192. LEGAL_US_E # 96047971.2 7
3. Protecting Privilege in Internal Investigations 19 Internal investigations present another context ripe for waiver issues. First, a predominant issue in this situation becomes who is the client who speaks for or waives privilege for the corporation? Further, in the course of an internal investigation, a company must balance its competing interests in uncovering and addressing wrongdoing, and protecting privileged communications from future assertions of waiver. To this end, some courts have concluded that certain materials produced during an internal investigation are immune from discovery in later litigation. This section discusses the definition of client in a corporate context and then the self-evaluation privilege recognized by some courts. a. Who is the Client? In the context of a corporation, the client is the incorporeal institution, rather than any individual, director, officer, or executive. This means that whoever controls the corporation controls the privilege. Perhaps even more complicated than determining who controls the privilege is the question of who creates the privilege over the communications who speaks for the corporation. This is particularly relevant in an internal investigation, where various corporate players are providing information to investigators. Courts originally protected only communications to and from a corporation s control group of upper management (and those who advise them). Then, in 1981, the U.S. Supreme Court in Upjohn Co. v. United States rejected this hierarchical test and replaced it with a functional test (although some states still follow the control group test). Now, the privilege protects a communication as long as: (1) The communications were made by corporate employees to corporate counsel upon order of superiors in order for the corporation to secure legal advice from counsel (2) The information needed by corporate counsel in order to formulate legal advice was not available to upper-level management (3) The information communicated concerned matters within the scope of the employee s corporate duties (4) The employees were aware that the reason for communication with counsel was so that the organization could obtain legal advice (5) The communications were ordered to be kept confidential and they remained confidential. 20 19 These materials are of limited scope and thus do not address several issues that counsel must keep in mind during an internal investigation, including, inter alia, Fifth Amendment protections, document preservation and litigation hold considerations, and many practical considerations that differ from the traditional litigation setting. 20 449 U.S. 383 (1981). LEGAL_US_E # 96047971.2 8
In some cases, this may even include former corporate employees or independent contractors. Moreover, this distinction between whose speech is protected and who controls the privilege means that an employee whose communications with the lawyer are protected often does not choose whether that privilege is waived. b. Self-Evaluative Privilege The privileged nature of communications and work product resulting from internal investigations is especially significant because these investigations may lead to litigation or government inquiries. Thus, while companies want to be proactive in addressing the problem, they must also consider whether they are creating a record that future adversaries can seize to make their case. In recent years, certain courts have recognized a third privilege, distinct from the attorney-client privilege and work product immunity. The self-evaluative privilege seeks to protect materials collected by a company in connection with self-critical analysis. Although a number of courts have applied this privilege in varied contexts, it is often difficult to assert and its scope is limited. i. Origins and Policy Motivations The self-evaluative privilege first emerged in Bredice v. Doctors Hospital, Inc., a medical malpractice case in 1970. 21 In Bredice, the plaintiff in a wrongful death malpractice action sought to obtain the minutes of a hospital staff meeting at which the staff reviewed and analyzed clinical reports to improve hospital care and treatment. Instead, the court permitted the hospital s assertion of privilege, recognizing an overwhelming public interest in having such meetings remain confidential. Underlying the Bredice decision and those of subsequent courts recognizing a similar privilege is the desire to encourage companies to engage in an effort to identify their misconduct and improve their compliance. In particular, the purpose of the privilege is to encourage companies to comprehensively evaluate their practices and procedures in order to identify deficiencies and take remedial action. ii. Judicial Acceptance of the Privilege While a number of courts since Bredice have recognized the self-evaluative privilege, many others have not. Of these latter courts, some have relied on the Supreme Court decision in University of Pennsylvania v. EEOC, which rejected the university s attempt to protect peer review materials from discovery in an employment discrimination case. 22 These and other courts assert that the privilege does not serve the public interest. For instance, these 21 50 F.R.D. 249 (D.D.C. 1970). 22 493 U.S. 182 (1990). LEGAL_US_E # 96047971.2 9
courts reason that companies conduct self-evaluations to promote their business interests and would perform the analyses without regard to the possibility of discovery in future litigation. 23 Another court explained that the self-evaluative privilege fails the traditional common law test for establishment of a privilege, which requires that courts balance the public s need for the full development of relevant facts in federal litigation against the countervailing demand for confidentiality in order to achieve the objectives underlying the privilege at issue. 24 Some courts still recognize the privilege, echoing the policy rationale of Bredice that allowing adversaries to access written materials prepared during an internal investigation would discourage frank self-criticism and review. 25 Of those courts that have acknowledged the privilege, most have required that the documents meet the following criteria: (1) the information produced must result from a critical selfanalysis undertaken by the party seeking protection; (2) the public must have a strong interest in preserving the free flow of that information; (3) the information must be of the type whose flow would be curtailed if discovery were allowed; (4) the information must have been created with the intention that it be kept confidential and it has in fact remained confidential; and (5) the information must be subjective, rather than purely factual, in nature. 26 If the party claiming the privilege meets these criteria, the moving party must then show its interests outweigh the need to apply the privilege. 27 However, even amongst these courts, a number are still split on whether the privilege should attach to mandatory or voluntary self-evaluative efforts. While some courts reject this distinction, others have concluded that the self-evaluative privilege is only available in certain contexts. For instance, some courts have characterized the public policy underlying the privilege as the desire to assure fairness to persons required by law to engage in selfevaluation ; accordingly, self-critical analysis should only be invoked to ensure that: (1) companies are not unfairly forced to produce documents that the government has required them to create; and (2) there is a free flow of information between companies and governmental agencies. 28 In contrast, other courts have emphasized the privilege was [i]ntended to encourage 23 See, e.g., Cruz v. Coach Stores, Inc., 196 F.R.D. 228 (S.D.N.Y. 2000). 24 Roberts v. Hunt, 187 F.R.D. 71 (W.D.N.Y. 1999). 25 Banks v. Lockheed-Georgia Co., 53 F.R.D. 283 (N.D. Ga. 1971). 26 See, e.g., Morgan v. Union Pac.R.R. Co., 182 F.R.D. 261, 264 65 (N.D. Ill. 1998); Tice v. American Airlines, Inc., 192 F.R.D. 270, 273 (N.D. Ill. 2000). 27 CPC Intern. v. Hartford Acc., 262 N. J. Super. 191, 198 (citing Wei v. Bodner, 127 F.R.D. 91, 101 (D.N.J. 1989)). 28 Roberts v. Carrier Corp., 107 F.R.D. 678, 684 (N.D. Ind. 1985) (citing O Connor v. Chrysler Corp., 86 F.R.D. 211, 218 (D.Mass. 1980)). LEGAL_US_E # 96047971.2 10
non-compulsory self-analysis and self-criticism and thus theorized that records a company is required to maintain are unlikely to be protected as self-critical analysis. 29 These variations, even among courts accepting the privilege, make reliance thereon problematic. c. Practical Implications The hesitancy of many courts to recognize a self-evaluative privilege, and the inability of other courts to define its bounds, fail to provide assurance to companies that their self-evaluative efforts will be protected from future disclosure. Consequently, companies should be wary of assuming that information prepared in the course of an internal investigation is necessarily privileged. Reference to court decisions in particular jurisdictions and substantive areas may provide guidance on the issue. For instance, a court will rarely recognize the selfcritical analysis privilege in environmental cases, largely based on the clear legislative directive that the hazardous waste industry be subject to public scrutiny and especially when extensive government regulations require internal audits. 30 In contrast, the self-evaluative privilege has met mixed success in the employment context. 31 Further, information gathered in anticipation of litigation is still more likely to garner protection than documents prepared for a business purpose or to comply with government regulations. 32 Practitioners should also recall that, even if a court recognizes the self-evaluative analysis privilege, the underlying information in the privileged documents is still discoverable. 4. Conclusion Government and internal investigations present unique issues in the context of privilege and especially waiver. Despite evolving government policies on requesting waiver during an investigation, companies still must decide whether to waive privilege in cooperating with the government. Practitioners should be aware of the precedent in their circuit and understand that disclosure to the government may necessitate disclosure of the same information to future adversaries. Likewise, in the context of internal investigations, practitioners should be cognizant of the case law in their jurisdiction and take precautions that any self-evaluative efforts result in subjective work product that remains strictly confidential. Counsel should assert the self-evaluative privilege cautiously and with an understanding that the existence and scope of the privilege is unsettled. Even still, in some cases the self-evaluative privilege can offer another potential protection in addition to the attorney-client privilege and work product immunity. 29 See, e.g., Morgan, 182 F.R.D. at 265. 30 State ex. rel. Celebrazze v. CECOS Int l, Inc., 583 N.E.2d 1118 (1990). 31 Compare Banks, 53 F.R.D. at 283 (prohibiting plaintiffs from accessing defendant s candid self-analysis of its compliance with Title VII and Executive Order 11246), with Roberts, 187 F.R.D. 71 (rejecting the availability of self-evaluative privilege under federal law, in the context of an age discrimination case). 32 See Hardy v. N.Y. News, Inc., 114 F.R.D. 633 (S.D.N.Y. 1987). LEGAL_US_E # 96047971.2 11