Cloud

This is a discovery dispute in the context of a claim of gender-based discrimination. The petitioner, plaintiff in the trial court proceedings, served a demand for production pursuant to Code of Civil Procedure section 2031. In it, she sought discovery of documents relating to the affirmative action plans of real party in interest Litton Industries, Inc. (Litton), one of the defendants below. Litton objected to discovery about its affirmative action plans. Among other things, it claimed that some of the documents were protected by the “self-critical analysis privilege.” Petitioner’s motion to compel was denied on the basis of public policy. The result was to deny petitioner discovery of the affirmative action plans themselves as well as the self-critical analyses. The court’s finding that judicially enforced discovery of the documents would offend public policy amounted to an adjudication that they are privileged. Both petitioner and Litton have treated it that way in their briefing.

We hold the documents are not protected by any privilege recognized in this state. In California, privileges are created by the Legislature, not by courts. None apply to the documents at…