by the unfairness to the seeking party if privilege is found. Unfairness is judged by the seeking party's substantial need of the materials and undue hardship in obtaining them elsewhere.
In the present litigation, the third element of the test is satisfied in light of the context of the communications and the unfairness of prohibiting discovery. Aetna seeks communications between Koppers and its counsel relating to Koppers' expectation that its activities might cause environmental contamination. But the environmental affairs of a corporation are highly regulated by federal and local governments, and therefore the at-issue exception to attorney-client privilege is not likely to chill communication between a potential polluter and the polluter's legal counsel. In other words, Koppers would be communicating to counsel with respect to its potential environmental liabilities whether or not those communications were subject to discovery.
Prohibiting discovery in this case would be unfair, for the defendants would have little recourse, now more than eight years after this suit was filed, to obtain relevant discovery to counter Koppers' affirmative defense that it neither expected nor intended the contamination. It is undisputed that substantial employee turnover has occurred at both Koppers and at the disposal sites since the onset of the alleged contamination. And the defendants surely have substantial need of the disputed discovery, for it may be the only source of information refuting Koppers' affirmative defense that it did not expect contamination. Cf. Rhone-Poulenc Rorer, Inc. v. The Home Indemnity Co., 1993 U.S. Dist. LEXIS 5234, 1993 WL 106429, at *3 (E.D. Pa. March 30, 1993), aff'd 1993 U.S. Dist. LEXIS 10930, 1993 WL 304047 (August 6, 1993) (commenting that "it is difficult to conceive of materials more relevant" than attorney-client communication where plaintiff asserted no expectation or intention of injuries from contaminated blood).
Koppers relied extensively on four cases interpreting the at-issue exception: Pittston Co. v. Allianz Ins. Co., 143 F.R.D. 66 (D.N.J. 1992), NL Indus., Inc. v. Commercial Union Ins. Co., 144 F.R.D. 225 (D.N.J. 1992), Remington Arms Co. v. Liberty Mutual Ins. Co., 142 F.R.D. 408 (D. Del. 1992), and Jules Jurgensen/Rhapsody, Inc. v. Rolex Watch U.S.A., Inc., 1989 U.S. Dist. LEXIS 521 (E.D. Pa. 1989). To the extent these courts held the at-issue exception to apply only where the party resisting discovery uses the confidential communications to buttress its own case, we depart from those cases, for such a rule rings hollow: Few advocates would voluntarily use documents that damage their case.
We emphasize that the nature of the at-issue exception regrettably prevents easy mechanical application of it. Instead, the third at-issue factor requires a balancing between the likelihood of chilling the type of communication sought and the unfairness in finding the communication privileged. While the attorney-client privilege and work product doctrine are historically critical to the functioning of the legal process, they are neither absolutes nor hastily set aside.
III. The self-evaluation or critical self-analysis privilege
We agree with the magistrate judge that the self-evaluation or critical self-analysis privilege does not apply in this case. This rarely-recognized privilege is premised on a policy rationale that encourages individuals and corporations to act responsibly and deliberately. See, e.g., Abel v. Merrill Lynch & Co., 1993 U.S. Dist. LEXIS 1213, 1993 WL 33348 (S.D.N.Y. Feb. 4, 1993); Myers v. Uniroyal Chemical Co., 1992 U.S. Dist. LEXIS 6472, 1992 WL 97822 (E.D. Pa. May 5, 1992).
Based on our analysis of the at-issue exception set forth above, the self-evaluation privilege does not apply a fortiori to environmental reports, records, and memoranda. Indeed, we disagree that a corporation would face a Hobson's choice between due diligence and self-incrimination in the the tightly-regulated environmental context, for that context requires strict attention to environmental affairs. We doubt that today potential polluters will violate regulations requiring environmental diligence for fear of these documents being used against them tomorrow.
We also find informative the reasoning of the court in CPC Int'l, Inc. v. Hartford Accident and Indemnity Co., 262 N.J. Super. 191, 620 A.2d 462 (N.J.Super. 1992). In rejecting the self-evaluation privilege, the court in CPC reasoned that the "public need for disclosure of documents relating to environmental pollution and the circumstances of such pollution outweighs the public's need for confidentiality in such documents." Id. at 467.
IV. Motion for Leave to File Instanter
Koppers urges that the parties must first determine which documents contain at-issue and self-evaluative information before we rule on whether these doctrines apply. But the subject of the documents sought is reasonably well-defined in this litigation: what did Koppers know and when did it know it with respect to environmental contamination at the various sites subject to this litigation. We therefore see no reason why the proverbial cart should be put before the horse, as Koppers suggests. While we will grant the motion for leave, we find it substantively meritless.
V. Defendants' Motion for Clarification
The defendants' motion for clarification of our Order dated February 11, 1994 asks us to modify that order to stay the 10/26/93 Opinion only with respect to documents pertinent to the at-issue and self-evaluation disputes. Because we will vacate that stay in its entirety, the motion for clarification will be denied as moot.
Maurice B. Cohill, Jr.
AND NOW, to-wit, this 17th day of March 1994, for the foregoing reasons it is hereby ORDERED, ADJUDGED, and DECREED that the 10/26/93 Opinion (Doc. 287) of the magistrate judge be and hereby is AFFIRMED.
IT IS FURTHER ORDERED that Koppers' Motion for Leave to File Instanter its Reply Supporting its Objection (Doc. 335) is GRANTED, and we find the reply meritless.
IT IS FURTHER ORDERED that the order issued by this Court on February 11, 1994 (Doc. 369) granting Koppers' motion for a stay of the 10/26/93 Opinion be and hereby is VACATED, and the 10/26/93 Opinion, as herein modified, shall be in effect as of the date of this Order; Defendants' Motion for Clarification (Doc. 370) is DENIED as moot.
Maurice B. Cohill, Jr.