Page 30: of Maritime Reporter Magazine (November 2015)

LEGAL BEAT client, the attorney-client privilege does ture accidents, when the risk of creating self-critical analysis privilege. There- ment compulsion be a part of that equa- not pertain either. For example, a state- harmful evidence against them would fore, one’s best bet is to argue for the tion? Companies should be encouraged ment made to a lawyer by a third-party be a discouragement. The privilege was application of the privilege if it is rec- to voluntarily act responsibly. participant in an accident or a witness, initially created to protect the hospi- ognized in the state in which the federal Finally, even though the general mari- even if that witness is a company client’s tal peer review system in which physi- district court is sitting. Federal district time law or the law of a particular state employee, may not be protected by the cians consider the conduct or decisions judges are comfortable with applying the does not yet recognize the privilege, an privilege. of fellow physicians in order to make versions of the attorney-client privilege attempt to create a change in the law

If an accident investigation was con- improvements to the quality of health de? ned by the law of the state in which should be made. After all, both the gen- ducted by a vessel of? cer or company care. The privilege has not been widely they sit, and such should be no differ- eral maritime law and state law on privi- employee without a reasonable antici- recognized, unfortunately. Many times, ent with respect to the state de? nition of lege are forms of so called “common pation of litigation, such as in a “near- the reason given for failing to recognize the self-critical examination privilege. law,” which should evolve and grow to miss” situation, and the investigation the privilege is that an element of gov- Therefore, when the case is brought in suit the needs of the society. And unless report contains damaging admissions, ernment compulsion of the investigation the state court of a state that recogniz- the issue is raised, a court will never be that report might be discoverable in a is not present. But not all jurisdictions es the privilege, such as New Jersey, it forced to make a decision. Some coura- subsequent similar accident that did re- require that the reports be made under should not be dif? cult to convince the geous judges may recognize the impor- sult in harm and lead to a lawsuit. Is government compulsion in order to be court of the applicability of the privilege tant policy goals behind the privilege there any way in which those damaging protected. so long as the elements of the test are and change the law because it is the right admissions can be protected from being The federal courts have been reluctant satis? ed. thing to do, despite the fact that other discoverable or used by the other side to recognize the self-critical analysis In those states that require government judges in his/her jurisdiction have not to make its case? The answer is prob- privilege as a creature of the federal law compulsion as part of the test, that as- done so before. And unless you raise the ably “no,” but I would enthusiastically itself. A federal court will, however, en- pect of self-critical evaluation privilege point, you do not have an issue on appeal recommend attempting to invoke the force a privilege recognized by a state. may well be present in a maritime case, and the law will never be changed.

so-called “self-critical evaluation privi- Most maritime cases are litigated in particularly when one considers that lege” to try to protect the documents federal court, of course, and something adoption of the ISM code is mandatory and materials from being discovered. called the “general maritime law” is by federal statute with respect to certain

This form of privilege, recognized in a deemed to be applicable to those cases types of vessels. But where government few states under certain circumstances, at least as to matters of substance, un- compulsion does not exist, an argument

The Author is designed to solve the precise societal less modi? ed by federal statutes passed for recognition of the privilege should

Jeffrey S. Moller, Esquire, is a partner at problem of how to encourage a company by Congress. To the author’s knowledge, be made anyway. After all, the privilege

Partner, Blank Rome LLP, Philadelphia to conduct an objective and thorough in- there is no well-established principle of exists in order to encourage good behav- vestigation, thus possibly preventing fu- general maritime law that recognizes the ior by companies. Why should govern-

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