                           UNITED STATES DISTRICT COURT
                          FOR THE DISTRICT OF COLUMBIA
____________________________________
                                      )
CORNELIUS FELDER,                     )
as administrator of the estate of     )
Harold Ingram                         )
                                      )
                     Plaintiff,       )     Case No. 14-cv-1905 (TFH/GMH)
                                      )
v.                                    )
                                      )
WASHINGTON METROPOLITAN               )
AREA TRANSIT AUTHORITY et al.         )
                                      )
                     Defendants.      )
____________________________________)

                                      MEMORANDUM OPINION
        This matter has been referred to the undersigned for the management of discovery and

resolution of all discovery disputes. Before the Court is plaintiff’s motion to compel defendant

Washington Metropolitan Area Transit Authority (“WMATA”) to produce a disciplinary

memorandum it issued to its employee, Christopher Hamlin, relating to the accident at issue in

this case. This motion is ripe for resolution. Upon consideration of the parties’ briefs and the

entire record herein, 1 the Court will grant in part and deny in part the motion as stated herein.

                                             BACKGROUND

        This is a wrongful death action against WMATA for the death of a contractor, Harold

Ingram, on a job site. Plaintiff alleges that on October 6, 2013, a WMATA employee,




1
  The relevant docket entries for purposes of this Memorandum Opinion are: (1) Plaintiff’s Motion to Compel
Discovery (“First Mot. to Compel”) [Dkt. 51] (2) Defendant WMATA’s Response to Plaintiff’s First Motion to
Compel (“Resp. to First Mot. to Compel”) [Dkt. 57]; (3) Plaintiff’s Emergency Motion to Compel Discovery
(“Second Mot. to Compel”) [Dkt. 58]; (4) Defendant WMATA’s Response to Plaintiff’s Emergency Motion to
Compel (“Resp. to Second Mot. to Compel”) [Dkt. 60]; (5) Transcript of October 27, 2015 Hearing [Dkt. 63]; and
(6) October 27, 2015 Order [Dkt. 64].
Christopher Hamlin, struck and killed the decedent while operating heavy machinery. The

instant dispute focuses on whether WMATA’s disciplinary memorandum against Hamlin related

to this incident is protected by the self-evaluative privilege. 2

         Plaintiff filed two motions to compel which covered largely the same ground. The

discovery request at issue here is plaintiff’s Request for Production No. 7(a), which requests

“[t]he entire WMATA employment file, including all records of performance, supervision,

evaluation, and discipline, for the following individuals involved in the incident in question: (a)

Chris Hamlin.” First Mot. to Compel at 4. On October 27, 2015, Judge Hogan entered an order

granting in part and denying in part plaintiff’s motions. See Oct. 27, 2015 Order. In that order,

Judge Hogan found that several safety reports generated by WMATA after the accident were

protected by the self-evaluative privilege. Id. at 3. The order did not specifically mention the

disciplinary memorandum.

         The parties requested several clarifications of the Court’s order. One of the questions

posed by the parties was whether the disciplinary memorandum should be produced. To resolve

this and future discovery disputes, Judge Hogan referred this matter to the undersigned on

November 17, 2015. The undersigned held a hearing on November 24, 2015, to discuss the

parties’ remaining dispute over the disciplinary memorandum. At the hearing, the undersigned

requested that WMATA produce several documents for in camera review, including the


2
  In its responses to plaintiff’s motions to compel, WMATA raised both the work-product doctrine and the self-
evaluative privilege in defense of its failure to produce, inter alia, the disciplinary memo. See Resp. to First Mot. to
Compel, at 5–8. The Court will not address the work-product doctrine further in this opinion for two reasons. First,
neither party discussed the work-product doctrine in their letters to the undersigned on this issue or at the hearing
before the undersigned on November 24, 2015. WMATA thus appears to have abandoned the argument. Second,
even if WMATA asserted the work-product doctrine here, the Court would find it without merit. The disciplinary
memorandum was not created for the purpose of litigation; instead, it was a document created as part of an internal
process within WMATA for disciplining employees and recording the reasons for any discipline imposed. As such,
the document would have been created irrespective of litigation. FTC v. Boehringer Ingelheim Pharmaceuticals,
Inc., 778 F.3d 142, 154 (D.C. Cir. 2015) (“Where a document would have been created ‘in substantially similar
form’ regardless of the litigation, work product protection is not available.”).

                                                           2
disciplinary memorandum and the safety reports which the Court found to be protected by the

self-evaluative privilege. See Nov. 24, 2015 Minute Order. The undersigned also ordered

WMATA and plaintiff to report on whether and how disciplinary memoranda have been

produced in other cases brought against WMATA. Id. On November 30, 2015, WMATA

produced the requested documents to the undersigned and provided a letter reporting on the

treatment of disciplinary memoranda in other cases. On December 3, 2015, plaintiff submitted a

similar letter expressing his view on how such memoranda have been treated in other cases.

                                     LEGAL STANDARD

       When a party objects to a request for production of documents under Federal Rule of

Civil Procedure 34(a)(1), the requesting party may move for an order compelling disclosure of

the withheld material. Fed. R. Civ. P. 37(a). The party that brings the motion to compel “bears

the initial burden of explaining how the requested information is relevant.” Jewish War Veterans

of the United States of America, Inc. v. Gates, 506 F. Supp. 2d 30, 42 (D.D.C. 2007). The

burden then shifts to the non-moving party “to explain why discovery should not be permitted.”

Id. If a party has withheld documents on the grounds that they are privileged, the withholding

party “bears the burden of proving the communications are protected.” In re Lindsey, 158 F.3d

1263, 1270 (D.C. Cir. 1998).

                                          ANALYSIS

A.     WMATA’s Opinions, Characterizations, and Analysis of the Accident in the Hamlin
       Disciplinary Memorandum are Protected by the Self-Evaluative Privilege.

       The self-evaluative privilege is designed to protect the opinions and recommendations of

corporate employees engaged in the process of critical self-evaluation of the company’s policies

for the purpose of improving health and safety. Granger v. Nat’l R.R. Passenger Corp., 116

F.R.D. 507, 508 (E.D. Pa. 1987). The privilege seeks to encourage candid self-criticism. FTC v.

                                                3
T.R.W., Inc., 628 F.2d 207, 210 (D.C. Cir. 1980). The privilege also “prevent[s] a ‘chilling’

effect on self-analysis and self-evaluation prepared for the purpose of protecting the public by

instituting practices assuring safer operations.” Granger, 116 F.R.D. at 509. As the Court in

Bradley observed, discovery of self-critical evaluations is impermissible because

       the ultimate benefit to others from this critical analysis . . . far outweighs any
       benefits from disclosure. Valuable criticism could not be obtained under the
       threat of potential or possible public exposure for 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.

Bradley v. Melroe Co., 141 F.R.D. 1, 3 (D.D.C. 1992); see also Bredice v. Doctors Hosp., Inc.,

50 F.R.D. 249, 250 (D.D.C. 1970) (concluding that physician’s post-incident report to internal

review committee should be protected because “[c]onstructive professional criticism cannot

occur in an atmosphere of apprehension that [the analysis] will be used as a denunciation of a

colleague’s conduct in a [negligence] suit”). However, the privilege does not protect purely

factual material appearing alongside self-critical analysis. See Oct. 27, 2015 Order at 3; Martin

v. Potomac Elec. Power Co., No. 86–0603, 1990 WL 158787, at *3 n.4 (D.D.C. May 25, 1990)

(“[T]he privilege protects only the subjective, evaluative portions of documents; it does not bar

full discovery of all statistical information and data contained in the documents.”).

       For instance, in Sutton, the Court ordered that WMATA produce redacted versions of

several safety reports relating to the fatal bus accident at issue in that case. Sutton v. Washington

Metro. Area Transit Auth., Civil Action No. 07-1197 (D.D.C. Dec. 17, 2007), slip op. at 1–4

(unpublished decision). In instructing WMATA as to how it should redact those reports, the

Court distinguished between evaluative assessments and purely factual information. Id. at 2–4.

The Court found that the record of past accidents involving the WMATA bus driver who caused

the fatal accident was merely factual information that did not constitute the self-critical mental

                                                 4
impressions or conclusions of WMATA. Id. at 2. This included both the date of any past

incident and any action taken by WMATA in response to the incident. Id. at 2, 4. However, the

Court concluded that any “characterization and assessment” of the accidents was covered by the

privilege. Id. at 2–3.

       In this District, a party generally needs to show two elements to protect a document with

the self-evaluative privilege: (1) the document must be a critique submitted as part of a

mandatory government report; and (2) the document must have been prepared retrospectively as

a component of a post-accident evaluation. Wainwright v. Washington Metro. Area Transit

Auth., 163 F.R.D. 391, 396 (D.D.C. 1995). Courts are “reluctant to expand [the privilege]

beyond cases involving public health or safety.” Wade v. Washington Metro. Area Transit

Auth., No. 01–cv–334, 2006 WL 890679, at *5 (D.D.C. 2006) (citing First Eastern Corp. v.

Mainwaring, 21 F.3d 465, 467 n.1 (D.C. Cir. 1994)). Although “[t]he self-evaluative privilege is

rarely recognized,” id. (citing T.R.W., 628 F.2d at 210), the privilege has been held “applicable

to WMATA safety evaluations.” Wainwright, 163 F.R.D. at 396 (citing Gilbert v. Washington

Metro. Area Transit Auth., No. 85–535 (D.C. Cir. Sept. 3, 1986) (unpublished decision)); Sutton,

Civil Action No. 07-1197, slip op. at 2. Specifically, the Court in Gilbert extended protection to

several interoffice memoranda described as “contain[ing] candid self-criticism of WMATA

personnel.” See Gilbert, No. 85–535, slip op. at 2–3. The privilege has been held inapplicable to

internal WMATA recommendations regarding future contract negotiations, Mergentime Corp. v.

Washington Metro. Area Transit Auth., Civ. A. No. 89–1055, 1991 WL 167005, at *4 (D.D.C.

Aug. 6 1991), and WMATA’s internal investigatory findings relating to charges of sexual

harassment, Wade, 2006 WL 890679, at *5. Moreover, the Court in Wainwright found that the




                                                5
privilege did not protect a pre-accident, confidential test of a WMATA escalator which later

failed and injured the plaintiff. Wainwright, 163 F.R.D. at 396.

       In his order of October 27, 2015, Judge Hogan found that WMATA’s three safety reports

regarding the accident at issue in this case were protected by the self-evaluative privilege. Oct.

27, 2015 Order at 3. Judge Hogan relied on the decision of the district court in In re Lucy, No.

87-cv-2630 (D.D.C. Apr. 25, 1988) (unpublished decision), in concluding that the privilege

“‘protect[s] the deliberations of internal institutional bodies . . . whose function is to review and

criticize the quality of the institution’s work.’” Oct. 27, 2015 Order at 3 (quoting Lucy, 87-cv-

2630, slip op. at 3). Judge Hogan further observed that the privilege does not extend to factual

information contained in the safety reports. Id.

       In this case, WMATA argues that Hamlin’s disciplinary memorandum is protected by the

self-evaluative privilege. WMATA asserts that the memorandum was part of its post-accident

evaluation of the incident for the purpose of instituting remedial discipline and fostering better

safety procedures within WMATA. Resp. to First Mot. to Compel at 6. WMATA argues that

“[r]equiring WMATA to produce the mental impressions and opinions of WMATA personnel

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.” Id. at 7.

Plaintiff responds that WMATA’s disciplinary memorandum “is not the kind of retrospective

analysis to protect public safety that would receive the protection of the self-evaluative privilege.

Rather it is an investigation into an accident involving WMATA employees and employees of

one of WMATA’s contractors, Holland Inc., which employed [the decedent].” Second Mot. to

Compel at 4.




                                                   6
       The Court finds that the privilege applies to WMATA’s recommendations and

conclusions in the memorandum. First, WMATA has shown that Hamlin’s disciplinary

memorandum was prepared retrospectively as a component of a post-accident safety evaluation.

Courts in this District have previously extended the privilege to such WMATA safety

evaluations and candid self-criticism of WMATA employees. Wainwright, 163 F.R.D. at 396;

Gilbert, No. 85–535, slip op. at 2–3. Plaintiff argues that public safety is not implicated by

WMATA’s internal discipline of an employee, citing to this Court’s decision in Wade. Second

Mot. to Compel at 4. But this case is a far cry from Wade, in which the Court found that the

privilege did not protect WMATA’s internal investigatory findings relating to charges of sexual

harassment. Wade, 2006 WL 890679, at *5. Here, although the health and safety of the public

at large is not directly affected by WMATA’s job-site operations, the health and safety of

WMATA employees is certainly at stake. Concern for employee safety was sufficient in

Granger for the court to apply the privilege. Granger, 116 F.R.D. at 510. Moreover, this Court

has already found that safety reports related to this incident fall within the ambit of the privilege.

Oct. 27, 2015 Order at 3. Because the conclusions and analysis in the safety reports and the

Hamlin memorandum are largely the same, both should be protected. Doing so would promote

the candid self-criticism necessary to improve safety that undergirds the privilege. T.R.W., 628

F.2d at 210.

       Second, the Court finds that the memorandum was submitted as part of a mandatory

government report. Plaintiff has admitted as much in his briefing on the issue. Plaintiff argued

that WMATA created the documents related to its investigation of this incident “because it is

required to under federal law.” Second Mot. to Compel at 2. Specifically, WMATA “had a

legally-mandated obligation to investigate this incident” pursuant to direction from the Tri-State



                                                  7
Oversight Committee, which governs WMATA. Id. at 2–3. The Court agreed with this

conclusion at the hearing on October 27, 2015. Transcript of Oct. 27, 2015 Hearing at 5:8–10.

       In his argument before the undersigned on November 24, 2015, plaintiff contended that

although WMATA is compelled by law to perform investigations in a general sense, there is no

specific requirement that WMATA discipline its employees. Thus, in plaintiff’s view, the

disciplinary memorandum is unlike WMATA’s other investigatory materials and does not meet

the mandatory-creation element of the self-evaluative privilege. The Court disagrees, finding

this issue fairly concluded by plaintiff’s prior representations to the Court that all of WMATA’s

investigatory materials were created according to legal mandate and the Court’s concurrence in

that conclusion.

       Furthermore, even if the Court agreed with plaintiff that the Hamlin memorandum was

not required by law, the Court would nevertheless find that the self-evaluative privilege should

apply here. The Court in Wainwright was the first to articulate the two-part standard identified

above. That standard has been cited only once since Wainwright was decided and, even in that

case, the standard was not applied. See Mahnke v. Washington Metro. Area Transit Auth., 821

F. Supp. 2d 125, 150 n.16 (D.D.C. 2011) (citing Wainwright but declining to apply it). Indeed,

courts prior to Wainwright appeared to find the privilege applicable without making any express

finding that the documents in question were created for use in a mandatory government report.

See, e.g., Gilbert, No. 85–535, slip op. at 2–3; Sutton, Civil Action No. 07-1197, slip op. at 1–4.

       The Court is therefore not convinced that both elements are strictly required to establish

the privilege. The more central inquiry in each case is whether the document was created for the

purpose of retrospective self-criticism to improve health and safety. As explained above, the

Court so finds with respect to the Hamlin memorandum. Because WMATA has made this



                                                 8
essential showing, the Court finds it inappropriate to deny protection even assuming this

document may not have been required by law. 3 Accordingly, recommendations and conclusions

contained in the memorandum are protected by the self-evaluative privilege.

B.       Plaintiff May Discovery the Facts Set Forth in the Hamlin Memorandum Because
         They are Not Privileged and Plaintiff Has Demonstrated Their Relevance.

         Although the Court finds that Hamlin’s disciplinary memorandum is protected by the

self-evaluative privilege, the Court will order WMATA to produce a redacted version of the

memorandum which excises only those portions of the document which contain WMATA’s

opinions, characterizations, and assessment of the accident. Specifically, WMATA shall redact

only the following from the memorandum: from the first sentence of the first full paragraph of

the second page of the memorandum, beginning with, “The results of. . .”, through the third page

of the memorandum up to and excluding the sentence beginning “[a]s a result of this incident. . .

.” The remainder of the document, including the document header, the description of the

incident, the description of the discipline imposed, the handwritten portions, and the signature

block, contains factual information which plaintiff is entitled to discover because he has made

the threshold showing of relevance. See Sutton, Civil Action No. 07-1197, slip op. at 1–4. 4


3
 As noted above, the parties reported to the Court regarding the treatment of disciplinary memoranda in other cases
brought against WMATA. The Court finds those cases largely unhelpful. During the pendency of the Fort Totten
case, 10-mc-314 (D.D.C.), the disciplinary memorandum at issue was disclosed by the National Transportation
Safety Board as part of the Board’s investigation, not by WMATA. As for Mahnke, although the disciplinary
memorandum at issue was disclosed, such disclosure was inadvertent. See Mahnke v. Washington Metro. Area
Transit Auth., 821 F. Supp. 2d 125, 150–51 (D.D.C. 2011). Indeed, the Court found that WMATA’s accidental
disclosure of its disciplinary findings in a press release did not foreclose the argument that the memorandum should
be excluded from trial pursuant to Federal Rule of Evidence 407. Id. at 151–52. Furthermore, the Court in Mahnke
never ruled on the applicability of the self-evaluative privilege. Instead, the Court only analyzed its admissibility
under Rule 407. Id. at 150 n.16.
4
  In argument before the undersigned, counsel for WMATA represented that plaintiff was required to show
substantial need to obtain any information within the memorandum. WMATA apparently borrowed this
requirement from the work-product doctrine, but failed to direct this Court to any cases applying the substantial-
need requirement to claims of self-evaluative privilege. Contrary to WMATA’s view, the two doctrines are highly
distinct. Whereas work-product protection extends to facts and opinions (in varying degrees), see Fed. R. Civ. P.
26(b)(3)(A)-(B), the self-evaluative privilege simply does not extend to facts. Oct. 27, 2015 Order at 3.

                                                         9
                                               CONCLUSION

        For the foregoing reasons, plaintiff’s motion to compel defendant WMATA to produce

Christopher Hamlin’s disciplinary memorandum will be GRANTED IN PART and DENIED

IN PART.

        An appropriate Order will accompany this Memorandum Opinion.
                                                                                         Digitally signed by G. Michael Harvey
                                                                                         DN: cn=G. Michael Harvey, o, ou,
                                                                                         email=Michael_Harvey@dcd.uscourt
                                                                                         s.gov, c=US
                                                                                         Date: 2015.12.31 15:32:32 -05'00'
Date: December 31, 2015                                       __________________________________
                                                                                         Adobe Acrobat version: 11.0.10
                                                              G. MICHAEL HARVEY
                                                              UNITED STATES MAGISTRATE JUDGE




Consequently, plaintiff need not show anything beyond ordinary relevance to obtain discovery of factual portions of
the memorandum. The information contained within the memorandum is undoubtedly relevant to this case, and
WMATA does not argue otherwise.

                                                        10
