This blog’s earlier post, “Protect Your Safety Investigations and Deliberations From Prying Eyes,” highlighted the three privileges that are useful for Safety Teams – self-critical analysis privilege (or self-evaluation privilege), attorney-client privilege, and work product doctrine. These three privileges can help a manufacturer protect its information regarding product safety analysis when dealing with product liability litigation. These privileges, however, are not in any way capable of protecting all of such information.

The self-critical analysis privilege protects only the results of candid assessments of the company’s compliance with laws and regulations. There are usually four or five criteria that must be met before a court accepts this privilege. Furthermore, only a limited number of jurisdictions have adopted this privilege. It would be prudent for companies to check whether the likely jurisdiction of its anticipated litigation adopts this privilege or not.

The attorney-client privilege and the work product doctrine have their limits too. The attorney-client privilege protects only the communication between the attorney and the client. The work product doctrine protects only the work done in anticipation of litigation. There are usually a number of criteria that must be met before courts accept these privileges. Companies should not expect to automatically enjoy these privileges but should take proactive measures in order to preserve the privileges for later litigation.

Knowing the limits of these privileges allows manufacturers to better prepare for product liability litigation. For more details on these three privileges, Japanese readers can refer to the article, “Three Privileges That Can Help You In U.S. Product Liability Litigation,” published in the May 2015 issue of Business Law Journal, a LexisNexis Japan journal.