A recent ENR headline caught my attention: “Structural Engineers Learn Lessons From Failures Through Digital Databases.” The article by Nadine Post discussed a new digital database—similar to YouTube, SharePoint and Wikipedia—being developed by structural engineers to “harness knowledge” to avoid future loses.  

As noted in Post’s article, “[w]ith global engineering research, knowledge and failure data at their fingertips, designers are able to connect the dots as never before.”  Whether it is a post-construction meeting, survey or other analysis, construction industry players are wise to understand the legal implications associated with harnessing knowledge of lessons learned.

Is this type of information discoverable in subsequent litigation? Any lawyer worth his weight in gold would give you the only correct answer: It depends!  The key question is whether a “self-critical analysis” can be used by the opposing party as evidence of liability, breach of contract or violation of some standard of care. The courts have treated the issue differently—a few of which hold that these type of documents are “privileged” and are not discoverable. The self-critical analysis privilege should not be confused with attorney-client communications, which as a general rule are privileged and not discoverable.

The Majority Rule.  Most courts have rejected the self-critical analysis privilege entirely or defined it vary narrowly. Examples of project documents where courts have rejected application of the self-critical analysis privilege include:

  • Safety review and meeting notes
  • Quality control documents
  • Audit documents and other information
  • Environmental assessments and analysis
  • Internal communications and corporate reviews

Ultimately, you need to be concerned that any document containing your company’s self-critical analysis is generally not privileged and, therefore, will be subject to discovery in the event of litigation. However, this should not dissuade you from using “lessons learned” or “best practices” to ensure future successes and to avoid future losses.

Image: Paul Garland