## Facts

- Frank J. Carman, a management employee, was laid off in October 1992 during a reduction in force at McDonnell Douglas Aircraft Corporation.
- Carman sued under the Age Discrimination in Employment Act (ADEA), the Missouri Human Rights Act (MHRA), and ERISA, alleging his layoff was unlawful.
- In discovery, Carman sought documents and notes held by a corporate ombudsman (Therese Clemente) concerning Carman, certain coworkers, and meetings about layoffs in his division.
- McDonnell Douglas objected, asserting confidentiality and claiming the ombudsman’s materials were immune from discovery under an “ombudsman privilege.”
- The district court initially ordered production, but later reversed in a “clarifying” order and held the ombudsman materials were protected by an ombudsman privilege.
- The district court also declined to compel production of adverse impact analyses prepared in anticipation of litigation and limited certain reduction-in-force discovery to the division where Carman worked.
- The district court granted summary judgment to McDonnell Douglas, finding Carman failed to show the employer’s stated reasons were pretextual.
- Carman appealed, challenging the privilege-based discovery denial and the summary judgment that followed.

## Issues

1. Whether federal common law under Federal Rule of Evidence 501 recognizes an “ombudsman privilege” shielding a corporate ombudsman’s documents from discovery.
2. Whether summary judgment for the employer could stand where the plaintiff was denied discovery based on an improperly recognized privilege.

## Decision

- The Eighth Circuit reversed and remanded.
- The court held the district court lacked adequate justification to create and apply an ombudsman privilege to block discovery of the requested documents.
- The court directed that the ombudsman documents be produced and that the district court reconsider summary judgment on a more complete record.
- The court did not hold that other discovery limits (such as restricting certain information to Carman’s division) necessarily constituted an abuse of discretion.

## Legal Principles

- Under Federal Rule of Evidence 501, new evidentiary privileges are disfavored and should not be created absent a strong showing that a public good outweighs the truth-seeking function of litigation.
- The proponent of a new privilege bears a significant burden to show the asserted interest “transcends” the general rule favoring disclosure of relevant evidence.
- Internal confidentiality policies, standing alone, do not establish a legal privilege that blocks discovery.
- When discovery is wrongly curtailed by an improper privilege ruling, summary judgment based on the resulting incomplete record may require reversal and remand for reevaluation after proper discovery.

## Conclusion

The Eighth Circuit refused to recognize a federal ombudsman privilege on the record presented, required production of the ombudsman materials, and remanded for the district court to reassess summary judgment after the missing discovery was obtained.


Carman v. McDonnell Douglas Corp., 114 F.3d 790 (8th Cir. 1997)