[From IMLA News (Issue No. 12, July 07, 2010)]
In re The City of New York, No. 10-0237 (2d Cir. June 09, 2010) The plaintiffs were protesters and others who were arrested, detained, and fingerprinted after demonstrating at the 2004 Republican National Convention (RNC) in New York City. They brought suits under 42 U.S.C. § 1983 and state law, claiming that their arrests and treatment at the hands of the New York Police Department (NYPD) violated their rights. During pretrial discovery proceedings, the plaintiffs brought a motion to compel the City to produce roughly 1,800 pages of confidential reports created by undercover NYPD officers who were investigating potential security threats in the months before the RNC. The City opposed the motion to compel by asserting, among other things, that the documents were protected from disclosure by the law enforcement privilege. After the court 7 below granted the motion to compel, the City filed a petition for a writ of mandamus, seeking relief from the order to compel.
The Second Circuit granted the motion and vacated the order of the court below. The petition presented ― novel and significant question[s] of law ... whose resolution [would] aid in the administration of justice, as the court had not previously addressed ― the circumstances in which the law enforcement privilege must yield to a party‘s need for discovery. The City had also shown that its right to the writ was ― clear and indisputable, and, in the circumstances of the case, it did not have other adequate means to challenge the order. Allowing the disclosure of the reports on an ― attorneys‘ eyes only basis or by requiring filing under seal ― would provide insufficient protection for the confidential law enforcement information at issue.
The party asserting the law enforcement privilege had the burden of showing that the privilege applied. The law enforcement privilege ― clearly applie[d] to the documents here. The Field Reports, even in their redacted form, contain detailed information about the undercover operations of the NYPD. This information clearly relates to law enforcement techniques and procedures.‘ To determine whether the privilege was to give way, a court was to balance ― [t]he public interest in nondisclosure against ― the need of a particular litigant for access to the privileged information, but starting with a ― strong presumption against lifting the privilege. The plaintiffs‘ need for the reports did not overcome this ― strong presumption against disclosure, as nothing in those reports in any way undermined, contradicted, or cast doubt upon the information already provided by the City in certain ― End User Reports. Event ―if we were to agree with plaintiffs‘ claim that the City is using the [reports] as a sword‘ – that is, selectively disclosing Reports helpful to its defense – we would conclude ... that it is not unfair for the law enforcement privilege to protect the [reports] because the information in the [reports] does not contradict or undermine the information in the End User Reports. See http://tinyurl.com/365zzuc.