Frank J. Carman v. McDonnell Douglas Corporation
1997 U.S. App. LEXIS 13719, 114 F.3d 790, 46 Fed. R. Serv. 1138 (1997)
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Rule of Law:
Under Federal Rule of Evidence 501, federal common law does not recognize an evidentiary privilege for communications made to a corporate ombudsman, as the societal benefit of such a privilege does not outweigh the strong public interest in accessing all relevant evidence for the ascertainment of truth in litigation.
Facts:
- McDonnell Douglas Aircraft Corporation employed Frank Carman.
- The corporation also employed Therese Clemente as a corporate ombudsman, a neutral employee outside the chain of command tasked with confidentially investigating and mediating workplace disputes.
- The ombudsman's role purported to be independent, with a promise of strict confidentiality to all employees.
- In October 1992, McDonnell Douglas laid off Carman as part of a reduction in force.
- Carman believed his termination was discriminatory and sought access to notes and documents held by Clemente that were related to his layoff.
- McDonnell Douglas refused to produce the documents, asserting that the communications with the ombudsman were confidential and protected by a privilege.
Procedural Posture:
- Frank Carman sued McDonnell Douglas in the U.S. District Court, alleging age discrimination.
- During discovery, Carman filed a motion to compel the production of documents from the company's ombudsman.
- The District Court initially granted the motion but later ruled that McDonnell Douglas was not required to produce documents protected by an 'Ombudsman Privilege'.
- The District Court subsequently granted summary judgment in favor of McDonnell Douglas, dismissing Carman's case.
- Carman, as appellant, appealed the summary judgment and the discovery ruling to the U.S. Court of Appeals for the Eighth Circuit, with McDonnell Douglas as the appellee.
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Issue:
Does federal common law recognize an 'ombudsman privilege' that protects confidential communications between an employee and a company's ombudsman from discovery in a civil lawsuit?
Opinions:
Majority - Richard S. Arnold, Chief Judge
No. Federal common law does not recognize an 'ombudsman privilege.' A party seeking the creation of a new evidentiary privilege bears a significant burden to show that the public good from excluding relevant evidence transcends the fundamental principle of utilizing all rational means for ascertaining truth. McDonnell Douglas failed to meet this burden. The court reasoned that while alternative dispute resolution is valuable, there was no compelling evidence that an ombudsman's function would be lost without the privilege. An ombudsman can still promise confidentiality from management, which is likely an employee's primary concern, regardless of a legal privilege against discovery. The court concluded that the potential chilling effect on communications was speculative and did not justify withholding relevant evidence from the truth-seeking process of litigation.
Analysis:
This decision reinforces the strong presumption against the creation of new evidentiary privileges under Federal Rule of Evidence 501. It establishes that corporate internal dispute resolution mechanisms, like an ombudsman's office, are not shielded from the discovery process in federal court. By prioritizing the public's right to evidence over the confidentiality of the ombudsman relationship, the court sets a high bar for any party attempting to establish a new privilege. This ruling impacts corporations by clarifying that they cannot guarantee absolute confidentiality in their ombudsman programs, which may affect how these programs are structured and how employees choose to utilize them.
