## Facts

- CBS aired “The Uncounted Enemy: A Vietnam Deception,” alleging that senior U.S. military command in Vietnam manipulated intelligence about enemy strength.
- Gen. William C. Westmoreland sued CBS for libel, alleging the broadcast falsely accused him of participating in a deception.
- After the controversy, CBS News president Van Gordon Sauter directed a management-initiated internal investigation led by Benjamin Burton.
- Burton prepared a written internal investigative report (the “Benjamin Report”); Sauter issued a public memorandum (the “Sauter Memo”) that referred to, summarized, and relied on the Benjamin Report to defend the broadcast’s accuracy and CBS’s good faith.
- During discovery, Westmoreland moved to compel production of the Benjamin Report; CBS refused, claiming a “self-critical analysis” (confidential self-evaluation) privilege.

## Issues

1. Whether an internal investigative report prepared by a media defendant after a controversial broadcast is protected from discovery by a “self-critical analysis” or confidential self-evaluation privilege.
2. Whether CBS’s public reference to and reliance on the report in the Sauter Memo negated confidentiality or operated as a waiver-like bar to withholding it.
3. Whether attorney-client privilege or work-product doctrine otherwise protected the report from production.

## Decision

- The court granted Westmoreland’s motion to compel and ordered CBS to produce the Benjamin Report.
- The court declined to recognize (or apply) a broad self-critical analysis privilege on these facts.
- The court found CBS’s public use of the report to defend the broadcast inconsistent with withholding the report in the related libel litigation.
- The court did not treat the report as protected by traditional attorney-client privilege or work-product doctrine, characterizing it as an internal editorial/management investigation rather than legal communications or litigation-preparation material.

## Legal Principles

- Federal courts should be reluctant to recognize a freestanding “self-critical analysis” privilege absent a firm basis in established privilege law, particularly when the material is central to the dispute.
- Where a party publicly relies on and characterizes an internal report to assert good faith and accuracy, fairness concerns may defeat an effort to withhold the underlying report in litigation arising from the same events.
- In public-figure defamation cases requiring proof of actual malice, discovery into a media defendant’s internal investigation and knowledge bearing on truth or falsity is generally appropriate when relevant and proportional.

## Conclusion

The court compelled production of CBS’s internal post-broadcast investigative report, rejecting a claimed self-evaluation privilege and emphasizing both the report’s relevance to actual-malice discovery and the unfairness of CBS’s public reliance on the report while seeking to keep it from its adversary in litigation.


Westmoreland v. CBS, Inc., 97 F.R.D. 703 (S.D.N.Y. 1983)