Federal evidence law recognizes a qualified privilege for law enforcement investigatory materials.1 The application of this privilege can be of great pragmatic significance in civil rights actions brought under 42 U.S.C. §1983. On the one hand, information and evidence needed by §1983 plaintiffs for litigation is often in the possession and control of the governmental defendants. On the other hand, governmental officials may resist disclosure based upon the sensitive or confidential nature of the information sought by the plaintiff.
Until its recent decision in In re City of New York,2 the U.S. Court of Appeals for the Second Circuit had “rarely considered the scope” of the privilege, and its “last case to do so was decided over twenty years ago.”3 The court in City of New York, in an opinion by Judge Jose A. Cabranes, provided important guidance concerning (1) appellate review of district court denials of the law enforcement privilege; (2) the scope of the privilege; and (3) how the privilege should be applied.
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