Opinion
KNLCV156024544S
11-19-2018
Jeffrey WEED v. STATE of Connecticut et al.
UNPUBLISHED OPINION
OPINION
Shari Murphy, J.
In this personal injury action, the plaintiff and the defendant are presently engaged in discovery. A dispute has arisen concerning whether a document entitled "Pursuit Critique and Analysis" is protected from disclosure by way of privilege. By order of the court, Cosgrove, J., the defendant was directed to submit the document at issue for in camera inspection.
The court has reviewed the document and for the reasons which follow denies the defendant’s motion for claimed privilege and finds the document subject to disclosure.
DISCUSSION
Practice Book § 13-2 provides in relevant part: "In any civil action ... where the judicial authority finds it reasonably probable that evidence outside the record will be required, a party may obtain in accordance with the provisions of this chapter discovery of information or disclosure, production and inspection of papers, books, documents and electronically stored material to the subject matter involved in the pending action, which are not privileged ... and which are within the knowledge, possession or power of the party or person to whom the discovery is addressed."
Practice Book § 13-5 provides in relevant part "Upon motion by a party from whom discovery is sought, and for good cause shown, the judicial authority may make any order which justice requires to protect a party from annoyance, embarrassment, oppression, or undue burden or expense ..." (Emphasis added.)
The defendant does not claim that the disclosure of the subject document would result in "annoyance, embarrassment, oppression or undue burden or expense" nor does defendant claim a statutory privilege. Rather, the defendant argues that the "Pursuit Critique and Analysis" report comes within the purview of self-evaluative and/or self-critical analysis, the disclosure of which would deter uninhibited self-analysis and evaluation. As such, the defendant claims a "self-evaluative" and/or "self-critical" privilege. Connecticut does not recognize a "self-evaluative" and/or "self-critical" privilege by way of the common law nor statute. The defendant is asking the court to rely on federal cases to support a finding that such a privilege exists in this case. See Trezza v. Hartford, Inc., Docket No. 98 Civ. 2205 (MBMKNF), 1999 WL 511673 (S.D.N.Y. July 20, 1999); see also Sheppard v. Consolidated Edison Co. of New York, Inc., 893 F.Supp. 6 (E.D.N.Y. 1995); Flynn v. Goldman, Sachs & Co., Docket No. 91 Civ. 0035 (KMW), 1993 WL 362380 (S.D.N.Y. September 16, 1993). The court is not persuaded by the cases presented by the defendant. "The self-critical analysis privilege has led a checkered existence in the federal courts ... Neither the Supreme Court nor the Second Circuit has settled the question of whether the self-critical analysis privilege should be recognized as a matter of federal law." (Citation omitted; quotations marks omitted.) Mitchell v. Fishbein, 227 F.R.D. 239, 251 (S.D.N.Y. 2005).
The defendant also advances the argument that the situation is akin to peer review, a privilege which has repeatedly been recognized in Connecticut. However, the peer review privilege is a statutory privilege which does not apply to the underlying situation. General Statutes § 19a-17b. Over the years, our common-law privileges have been codified and extended by statutory creation. The court declines to create a privilege where one does not exist as that function more appropriately rests with the legislature. See State v. Rupar, 293 Conn. 489, 511, 978 A.2d 502 (2009) ("[w]e are not in the business of writing statutes; that is the province of the legislature").
General Statutes § 19a-17b(d) describes the protection from production of peer review documents in a civil action: "The proceedings of a medical review committee conducting a peer review shall not be subject to discovery or introduction into evidence in any civil action for or against a health care provider arising out of the matters which are subject to evaluation and review by such committee ..." Section 19b(a)(2) defines "peer review" as follows: "Peer review means the procedure for evaluation by health care professionals of the quality and efficiency of services ordered or performed by other health care professionals ..." (Emphasis added; internal quotation marks omitted.)
CONCLUSION
For the reasons set forth above, it is hereby ordered that defendant disclose to plaintiff the document entitled "Pursuit Critique and Analysis."