Cloud v. Superior Court
96 Daily Journal DAR 14011, 58 Cal. Rptr. 2d 365, 50 Cal. App. 4th 1552 (1996)
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Rule of Law:
California does not recognize a common-law "self-critical analysis privilege" to shield documents from discovery because evidentiary privileges are strictly limited to those created by statute.
Facts:
- Vibeke Cloud held a senior financial position as an employee of Litton Industries, Inc. (Litton) and its affiliate, Western Atlas, Inc., since 1981.
- As a federal contractor, Litton was required by federal regulations to maintain affirmative action plans and conduct candid, self-critical analyses of its employment practices.
- In 1993, the position of controller for Western Atlas became available and Cloud applied for it.
- Cloud was denied the promotion to controller.
- Cloud alleged that she was denied the promotion because of her gender.
Procedural Posture:
- Vibeke Cloud (plaintiff) sued Litton Industries, Inc. (defendant) in a California trial court, alleging gender discrimination in violation of the state Fair Employment and Housing Act.
- During discovery, Cloud served Litton with a demand for production of all documents related to its affirmative action plans.
- Litton objected to the demand, eventually asserting a 'self-critical analysis privilege' to avoid producing the documents.
- Cloud filed a motion to compel Litton to produce the requested documents.
- The trial court denied Cloud's motion, ruling that compelling disclosure would be contrary to public policy.
- Cloud (petitioner) then petitioned the California Court of Appeal for a writ of mandate to compel the trial court to grant her discovery motion.
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Issue:
Does California law recognize a 'self-critical analysis privilege' that protects a company's internal affirmative action plans and related self-evaluations from discovery in a gender discrimination lawsuit?
Opinions:
Majority - Epstein, J.
No. California law does not recognize a 'self-critical analysis privilege' because privileges in California are exclusively created by statute, and no such statutory privilege exists. The court reasoned that California's approach to evidentiary privileges is fundamentally different from the federal system. Under Evidence Code section 911, privileges are not recognized unless specifically provided by statute, and courts are not free to create new privileges as a matter of judicial policy. The Legislature has enacted specific privileges for similar types of evaluative materials, such as healthcare peer reviews, demonstrating that it knows how to create such a privilege but has chosen not to for corporate self-analyses. Litton's other claims of attorney-client and work-product privilege were unsupported, and its trade secret claim was waived. The requested documents are relevant because a company's failure to adhere to its own affirmative action plan can be probative evidence of discrimination.
Analysis:
This decision firmly establishes that California state courts will not import the federally-developed, common-law 'self-critical analysis privilege.' It reinforces the strict statutory basis for all evidentiary privileges in California, preventing courts from creating new ones based on public policy arguments. The ruling significantly impacts employment discrimination litigation by ensuring plaintiffs can access defendants' internal affirmative action plans and self-assessments, which can be critical evidence of discriminatory intent or practice. Consequently, companies operating in California cannot expect these internal documents, often mandated by federal law, to be shielded from discovery in state court actions.
