Paul T. Hofmann - Comments

Our office represents injured workers and passengers who succumb to the risks of that industry. Workers and passengers cannot predict that they are going to suffer injuries, but RRs can, and are required to assess risks. In litigation, the plaintiff has the burden of proving notice, what the RR knew or should have known. The risk assessment may be the only honest source for the injured person to obtain proof of that knowledge. The RR will not only hide the risk assessment documents, but their lawyers will instruct witnesses to hide behind the privilige the rule will create, and they will make sure that witnesses who have knowledge are not identified. In similar situations, the courts are rejecting the so-called 'self-critical analysis' privilege as being an interference with truth seeking, and fair play in litigation. The underlying rationale that the privilege is necessary to encourage frank internal evaluations has been aptly criticized as being cynical and a plain rationalization for improper withholding of relevant evidence. Boyd v. City of New York, 1987 WL 6915 at *2 (S.D.N.Y 1987) (declining to adopt the “cynical” rationale that “unless internal agency investigations are protected from public disclosure, those investigations will not be honest.”) We strongly urge the FRA to decline adopting this proposed rule. Paul T. Hofmann, Hofmann & Schweitzer