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607 F.3d 923
(Cite as: 607 F.3d 923)
Page 1
United States Court of Appeals, Second
Circuit.
In re THE CITY OF NEW YORK
Hacer Dinler, et al., Michael Schiller, et al., Deirdre
Macnamara, et al., Plaintiffs-Respondents
v.
The City of New York, Raymond Kelly,
Commissioner of the New York City Police
Department, et al., Defendants-Petitioners.
Docket No. 10-0237-op. Argued:
April 19, 2010. Decided: June 9,
2010.
Background: City petitioned for writ of mandamus,
challenging decision of the United States District
Court for the Southern District of New York, Richard
J. Sullivan, J., 2009 WL 4789421, ordering disclosure
of undercover police reports in civil rights action
brought by protesters who were arrested during
political convention.
© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.
Page 2
607 F.3d 923
(Cite as: 607 F.3d 923)
Holdings: The Court of Appeals, José A. Cabranes,
Circuit Judge, held that:
(1)
city did not have other adequate means to
challenge order;
(2)
disclosure of reports on “attorneys' eyes only
basis” was not adequate to protect confidential
information in those reports;
(3)
petition raised sufficiently novel and
significant questions of law to justify a writ of
mandamus; (4) law enforcement privilege applied to
the police reports;
(5) plaintiffs failed to show compelling need for
undercover police reports that outweighed public's
substantial interest in nondisclosure; and (6) district
court indisputedly erred when it determined that law
enforcement privilege did not protect the reports, so as
to warrant mandamus relief.
250II Subjects and Purposes of Relief
250II(A) Acts and Proceedings of Courts,
Judges, and Judicial Officers
250k26 k. Exercise of judicial powers and
functions in general. Most Cited Cases
Mandamus 250
28
250 Mandamus
250II Subjects and Purposes of Relief
250II(A) Acts and Proceedings of Courts,
Judges, and Judicial Officers
250k28 k. Matters of discretion. Most
Cited Cases
Court of Appeals issues a writ of mandamus only
in exceptional circumstances amounting to a judicial
usurpation of power or a clear abuse of discretion. 28
U.S.C.A. § 1651(a).
Writ granted; order vacated.
[3] Mandamus 250
West Headnotes
[1] Mandamus 250
1
250 Mandamus
250I Nature and Grounds in General
250k1 k. Nature and scope of remedy in
general. Most Cited Cases
250 Mandamus
250I Nature and Grounds in General
250k3 Existence and Adequacy of Other
Remedy in General
250k3(1) k. In general. Most Cited Cases
Mandamus 250
Mandamus 250
250 Mandamus
7
31
250 Mandamus
250II Subjects and Purposes of Relief
250II(A) Acts and Proceedings of Courts,
Judges, and Judicial Officers
250k31 k. Entertaining and proceeding
with cause. Most Cited Cases
Writ of mandamus is an extraordinary remedy that
has been used both at common law and in the federal
courts to confine the court against which mandamus is
sought to a lawful exercise of its prescribed
jurisdiction. 28 U.S.C.A. § 1651(a).
[2] Mandamus 250
3(1)
26
250 Mandamus
250I Nature and Grounds in General
250k7 k. Discretion as to grant of writ. Most
Cited Cases
Mandamus 250
10
250 Mandamus
250I Nature and Grounds in General
250k10 k. Nature and existence of rights to be
protected or enforced. Most Cited Cases
There are three conditions that must be
established before a writ of mandamus may issue: (1)
the party seeking issuance of the writ must have no
other adequate means to attain the relief it desires; (2)
the issuing court, in the exercise of its discretion, must
© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.
be satisfied that the writ is appropriate under the
circumstances; and (3) the petitioner must demonstrate
that the right to issuance of the writ is clear and
indisputable. 28 U.S.C.A. § 1651(a).
[4] Mandamus 250
4(4)
250 Mandamus
250I Nature and Grounds in General
250k4 Remedy by Appeal or Writ of Error
250k4(4) k. Modification or vacation of
judgment or order. Most Cited Cases
Privileged Communications and Confidentiality
311H
358
311H Privileged Communications and Confidentiality
311HVI Public Officers and Records
311Hk358 k. Investigatory or law
enforcement records. Most Cited Cases
City did not have other adequate means to
challenge order requiring it to disclose undercover
police reports in civil rights action brought by
protesters who were arrested during political
convention, as required for mandamus relief;
disclosure order could not be challenged by means of
an interlocutory appeal, certification of the order was
not available because decision on the discovery
dispute would not materially advance ultimate
termination of the litigation, decision to hold city in
criminal contempt for disobeying the order was within
District Court's discretion, and appeal after final
judgment would not prevent disclosure of sensitive
information. 28 U.S.C.A. §§ 1292(b), 1651(a).
[5] Federal Courts 170B
170Bk574 k. Other particular
orders. Most Cited Cases
Mandamus 250
4(4)
250 Mandamus
250I Nature and Grounds in General
250k4 Remedy by Appeal or Writ of Error
250k4(4) k. Modification or vacation of
judgment or order. Most Cited Cases
Mandamus 250
32
250 Mandamus
250II Subjects and Purposes of Relief
250II(A) Acts and Proceedings of Courts,
Judges, and Judicial Officers
250k32 k. Proceedings in civil actions in
general. Most Cited Cases
The collateral order doctrine does not extend to
disclosure orders adverse to a claim of privilege;
instead, a party who loses a claim of privilege must
pursue other avenues of review apart from collateral
order
appeal,
including,
in
extraordinary
circumstances, a petition to the court of appeals for a
writ
574
170B Federal Courts
170BVIII Courts of Appeals
170BVIII(C) Decisions Reviewable
170BVIII(C)2 Finality of Determination
170Bk572
Interlocutory
Orders
Appealable
© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.
Page 4
607 F.3d 923
(Cite as: 607 F.3d 923)
of mandamus.
[6] Contempt 93
66(2)
93 Contempt
93II Power to Punish, and Proceedings Therefor
93k66 Appeal or Error
93k66(2) k. Decisions reviewable. Most
Cited Cases
A party to an action may immediately appeal an
order of criminal contempt.
[7] Mandamus 250
4(4)
250 Mandamus
250I Nature and Grounds in General
250k4 Remedy by Appeal or Writ of Error
250k4(4) k. Modification or vacation of
judgment or order. Most Cited Cases
Mandamus 250
32
250 Mandamus
250II Subjects and Purposes of Relief
250II(A) Acts and Proceedings of Courts,
Judges, and Judicial Officers
250k32 k. Proceedings in civil actions in
general. Most Cited Cases
Privileged Communications and Confidentiality
311H
358
311H Privileged Communications and Confidentiality
311HVI Public Officers and Records
311Hk358 k. Investigatory or law
enforcement records. Most Cited Cases
Disclosure of undercover police reports on
“attorneys' eyes only basis” in civil rights action
brought by protesters who were arrested during
political convention was not adequate to protect
confidential information in those reports, so as to
mitigate harm that could be caused by requiring city to
wait for a final judgment before appealing, rather than
seeking mandamus relief; accidental disclosure of the
reports risked undermining important police
investigatory procedures and thereby endangering the
safety of law enforcement personnel and countless city
residents. Fed.Rules Civ.Proc.Rule 26(c)(1)(G), 28
U.S.C.A.; 28 U.S.C.A. § 1651(a).
[8] Mandamus 250
4(4)
250 Mandamus
250I Nature and Grounds in General
250k4 Remedy by Appeal or Writ of Error
250k4(4) k. Modification or vacation of
judgment or order. Most Cited Cases
Mandamus 250
32
250 Mandamus
250II Subjects and Purposes of Relief
250II(A) Acts and Proceedings of Courts,
Judges, and Judicial Officers
250k32 k. Proceedings in civil actions in
general. Most Cited Cases
Privileged Communications and Confidentiality
311H
358
311H Privileged Communications and Confidentiality
311HVI Public Officers and Records
311Hk358 k. Investigatory or law
enforcement records. Most Cited Cases
Filing undercover police reports under seal in civil
rights action brought by protesters who were arrested
during political convention was not adequate to protect
confidential information in those reports, so as to
mitigate the harm that could be caused by requiring
city to wait for a final judgment before appealing order
requiring disclosure of such reports, rather than
seeking mandamus relief. 28 U.S.C.A. § 1651(a).
[9] Mandamus 250
32
250 Mandamus
250II Subjects and Purposes of Relief
© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.
Page 5
607 F.3d 923
(Cite as: 607 F.3d 923)
250II(A) Acts and Proceedings of Courts,
Judges, and Judicial Officers
250k32 k. Proceedings in civil actions in
general. Most Cited Cases
To determine whether mandamus is appropriate in
the context of a discovery ruling, Court of Appeals
looks primarily for the presence of a novel and
significant question of law and the presence of a legal
issue whose resolution will aid in the administration of
justice. 28 U.S.C.A. § 1651(a).
[10] Mandamus 250
11
250 Mandamus 250I Nature and Grounds
in General
250k11 k. Nature of questions involved.
Most Cited Cases
Allegedly
incorrect
application
of
a
welldeveloped principle does not, by itself, give rise to
such a novel and important issue as to warrant
mandamus review. 28 U.S.C.A. § 1651(a).
[11] Mandamus 250
32
250 Mandamus
250II Subjects and Purposes of Relief
250II(A) Acts and Proceedings of Courts,
Judges, and Judicial Officers
250k32 k. Proceedings in civil actions in
general. Most Cited Cases
City's petition challenging order requiring it to
disclose undercover police reports in civil rights action
brought by protesters who were arrested during
political convention raised sufficiently novel and
significant questions of law to justify a writ of
mandamus; petition required Court of Appeals to
clarify the legal standard for evaluating whether the
law enforcement privilege should give way to a party's
need for discovery, factors to be weighed in applying
that standard, whether there is a presumption against
disclosure, and if there is such a presumption, extent
of the showing that a party must make to overcome it.
28 U.S.C.A. § 1651(a).
[12] Privileged Communications and
Confidentiality 311H
358
311H Privileged Communications and Confidentiality
311HVI Public Officers and Records
311Hk358 k. Investigatory or law
enforcement records. Most Cited Cases
Purpose of the law enforcement privilege is to
prevent disclosure of law enforcement techniques and
procedures, to preserve the confidentiality of sources,
to protect witness and law enforcement personnel, to
safeguard the privacy of individuals involved in an
investigation, and otherwise to prevent interference
with an investigation.
[13] Mandamus 250
32
250 Mandamus
250II Subjects and Purposes of Relief
250II(A) Acts and Proceedings of Courts,
Judges, and Judicial Officers
250k32 k. Proceedings in civil actions in
general. Most Cited Cases
City's petition challenging order requiring it to
disclose undercover police reports in civil rights action
brought by protesters who were arrested during
political convention presented a legal issue whose
resolution would aid in the administration of justice, as
required for mandamus relief; by clarifying
circumstances under which the law enforcement
privilege must yield to a party's need for discovery,
Court of Appeals would provide guidance in an
important, yet underdeveloped, area of law and permit
police departments to predict which of their
documents will be subject to discovery in future
litigation. 28 U.S.C.A. § 1651(a).
[14] Mandamus 250
26
250 Mandamus
250II Subjects and Purposes of Relief
250II(A) Acts and Proceedings of Courts,
Judges, and Judicial Officers
© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.
Page 6
607 F.3d 923
(Cite as: 607 F.3d 923)
250k26 k. Exercise of judicial powers and
functions in general. Most Cited Cases
[17] Privileged Communications and
Confidentiality 311H
358
Mandamus 250
311H Privileged Communications and Confidentiality
311HVI Public Officers and Records
311Hk358 k. Investigatory or law
enforcement records. Most Cited Cases
To meet burden of showing that the law enforcement
privilege applies to the documents in question, the
party asserting the privilege must show that the
documents contain information that the law
enforcement privilege is intended to protect; such
protected information includes information pertaining
to law enforcement techniques and procedures,
information that would undermine the confidentiality
of sources, information that would endanger witness
and law enforcement personnel or the privacy of
individuals involved in an investigation, and
information that would otherwise interfere with an
investigation.
28
250 Mandamus
250II Subjects and Purposes of Relief
250II(A) Acts and Proceedings of Courts,
Judges, and Judicial Officers
250k28 k. Matters of discretion. Most
Cited Cases
Because a writ of mandamus is a drastic and
extraordinary remedy reserved for really extraordinary
causes, Court of Appeals issues the writ only in
exceptional circumstances amounting to a judicial
usurpation of power or a clear abuse of discretion. 28
U.S.C.A. § 1651(a).
[15] Federal Courts 170B
812
170B Federal Courts
170BVIII Courts of Appeals
170BVIII(K) Scope, Standards, and Extent
170BVIII(K)4 Discretion of Lower Court
170Bk812 k. Abuse of discretion.
Most Cited Cases
A district court abuses its discretion if it (1) bases
its ruling on an erroneous view of the law, (2) makes a
clearly erroneous assessment of the evidence, or (3)
renders a decision that cannot be located within the
range of permissible decisions.
[16] Privileged Communications and
Confidentiality 311H
358
311H Privileged Communications and Confidentiality
311HVI Public Officers and Records
311Hk358 k. Investigatory or law
enforcement records. Most Cited Cases
The party asserting the law enforcement privilege
bears the burden of showing that the privilege applies
to the documents in question.
[18] Privileged Communications and
Confidentiality 311H
358
311H Privileged Communications and Confidentiality
311HVI Public Officers and Records
311Hk358 k. Investigatory or law
enforcement records. Most Cited Cases
An investigation need not be ongoing for the law
enforcement privilege to apply, as the ability of a law
enforcement agency to conduct future investigations
may be seriously impaired if certain information is
revealed to the public.
[19] Privileged Communications and
Confidentiality 311H
358
311H Privileged Communications and Confidentiality
311HVI Public Officers and Records
311Hk358 k. Investigatory or law
enforcement records. Most Cited Cases
© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.
Page 7
607 F.3d 923
(Cite as: 607 F.3d 923)
Law enforcement privilege applied to undercover
police reports sought in civil rights action brought by
protesters who were arrested during political
convention; reports, even in their redacted form,
contained detailed information about the undercover
operations of city police department, providing
information about the nature of the department's
undercover operations would hinder its ability to
conduct future undercover investigations, and reports
could possibly disclose the identity of an undercover
officer.
[20] Privileged Communications and
Confidentiality 311H
358
311H Privileged Communications and Confidentiality
311HVI Public Officers and Records
311Hk358 k. Investigatory or law
enforcement records. Most Cited Cases
The law enforcement privilege is qualified, not
absolute.
[21] Privileged Communications and
Confidentiality 311H
358
311H Privileged Communications and Confidentiality
311HVI Public Officers and Records
311Hk358 k. Investigatory or law
enforcement records. Most Cited Cases
In determining whether the law enforcement
privilege applied to documents sought during
discovery, the public interest in nondisclosure must be
balanced against the need of a particular litigant for
access to the privileged information.
[22] Privileged Communications and
Confidentiality 311H
358
311H Privileged Communications and Confidentiality
311HVI Public Officers and Records
311Hk358 k. Investigatory or law
enforcement records. Most Cited Cases
Once a court has determined that the law
enforcement privilege applies, there ought to be a
pretty strong presumption against lifting the privilege.
[23] Privileged Communications and
Confidentiality 311H
358
311H Privileged Communications and Confidentiality
311HVI Public Officers and Records
311Hk358 k. Investigatory or law
enforcement records. Most Cited Cases
To rebut that presumption against lifting the
law enforcement privilege, the party seeking
disclosure must show (1) that its suit is non-frivolous
and brought in good faith, (2) that the information
sought is not available through other discovery or from
other sources, and (3) that the information sought is
important to the party's case.
[24] Privileged Communications and
Confidentiality 311H
358
311H Privileged Communications and Confidentiality
311HVI Public Officers and Records
311Hk358 k. Investigatory or law
enforcement records. Most Cited Cases
With respect to the importance of the information
sought, a compelling need is required to rebut
presumption that the law enforcement privilege
prevents disclosure of requested information.
[25] Privileged Communications and
Confidentiality 311H
358
311H Privileged Communications and Confidentiality
311HVI Public Officers and Records
311Hk358 k. Investigatory or law
enforcement records. Most Cited Cases
The ultimate burden of demonstrating the law
enforcement privilege is on the party asserting the
privilege.
© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.
Page 8
607 F.3d 923
(Cite as: 607 F.3d 923)
[26] Privileged Communications and
Confidentiality 311H
358
attaching to materials relied upon for that defense as a
shield.
311H Privileged Communications and Confidentiality
311HVI Public Officers and Records
311Hk358 k. Investigatory or law
enforcement records. Most Cited Cases
Once the presumption that the law enforcement
privilege prevents disclosure of requested information
has been overcome, a court must still balance the
public interest in nondisclosure against the need of a
particular litigant for access to the privileged
information.
[27] Privileged Communications and
Confidentiality 311H
358
[29] Mandamus 250
311H Privileged Communications and Confidentiality
311HVI Public Officers and Records
311Hk358 k. Investigatory or law
enforcement records. Most Cited Cases
Protesters who were arrested during political
convention failed to show compelling need for
undercover police reports that outweighed public's
substantial interest in nondisclosure as a means to
preserve the integrity of city police department's
undercover operations, as required to overcome law
enforcement privilege in their civil rights action
against city; reports did not undermine information
previously disclosed to plaintiffs, which indicated that
threats facing the convention justified city's mass
arrest policy.
[28] Privileged Communications and
Confidentiality 311H
10
311H Privileged Communications and Confidentiality
311HI In General
311Hk10 k. Offensive use doctrine. Most
Cited Cases
As a general matter, a party cannot use materials
as a sword in its defense while using privileges
32
250 Mandamus
250II Subjects and Purposes of Relief
250II(A) Acts and Proceedings of Courts,
Judges, and Judicial Officers
250k32 k. Proceedings in civil actions in
general. Most Cited Cases
Privileged Communications and Confidentiality
311H
358
311H Privileged Communications and Confidentiality
311HVI Public Officers and Records
311Hk358 k. Investigatory or law
enforcement records. Most Cited Cases
District court indisputedly erred when it
determined that law enforcement privilege did not
protect undercover police reports sought in civil rights
action by protesters who were arrested during political
convention, so as to warrant mandamus relief; district
court failed to apply strong presumption against lifting
the privilege after correctly determining it applied,
failed to require that plaintiffs show a compelling need
for the reports, and erroneously determined that
plaintiffs' need for the reports outweighed the strong
presumption against disclosure. 28 U.S.C.A. §
1651(a).
[30] Constitutional Law 92
2545(1)
92 Constitutional Law
92XX Separation of Powers
92XX(C) Judicial Powers and Functions
92XX(C)3 Encroachment on Executive
92k2542
Particular
Issues
and
Applications
92k2545 Criminal Law
92k2545(1) k. In general. Most
Cited Cases
© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.
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607 F.3d 923
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Constitutional Law 92
2620
92 Constitutional Law
92XX Separation of Powers 92XX(D)
Executive Powers and Functions
92k2620 k. Nature and scope in general.
Most Cited Cases
Control
of
criminal investigations
is
the prerogative of the executive branch,
subject to judicial intervention only to protect rights.
[31] Mandamus 250
ality
311HVI Public Officers and Records
311Hk358 k. Investigatory or law
enforcement records. Most Cited Cases
If documents potentially protected by the law
enforcement privilege are so sensitive that they should
not be left in a judge's chambers overnight, the district
court may, in its discretion, direct the party who
submitted the documents to retrieve them each
evening and to return them to the judge if and when
necessary.
1
[34] Federal Civil Procedure 170A
250 Mandamus
250I Nature and Grounds in General
250k1 k. Nature and scope of remedy in
general. Most Cited Cases
Writ of mandamus is appropriate when the writ
will aid in the administration of justice. 28
1625
U.S.C.A. § 1651(a).
170A Federal Civil Procedure
170AX Depositions and Discovery
170AX(E) Discovery and Production of
Documents and Other Tangible Things
170AX(E)4 Proceedings
170Ak1625 k. Protective orders. Most
Cited Cases
[32] Privileged Communications and
Confidentiality 311H
358
Privileged Communications and Confidentiality
311H
358
311H Privileged Communications and Confidentiality
311HVI Public Officers and Records
311Hk358 k. Investigatory or law
enforcement records. Most Cited Cases
In determining whether the law enforcement
privilege applies to requested documents, rather than
require that the parties file the potentially privileged
documents with the court, the district court may, in the
exercise of its informed discretion and on the basis of
the circumstances presented, require that the party
possessing the documents appear ex parte in chambers
to submit the documents for in camera review by the
judge, after which the materials can be returned to the
custody of that party.
311H Privileged Communications and Confidentiality
311HVI Public Officers and Records
311Hk358 k. Investigatory or law
enforcement records. Most Cited Cases
[33] Privileged Communications and
Confidentiality 311H
358
311H Privileged Communications and Confidenti-
Records 326
32
326 Records
326II Public Access
326II(A) In General
326k32 k. Court records. Most Cited
Cases
If the district court determines that the law
enforcement privilege does not protect the documents
at issue, the court may order that the documents be
revealed only in a specified way; although the court is
free to tailor the protective order to the circumstances
presented, the court may wish to consider making the
documents available only on an “attorneys' eyes only”
© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.
Page 10
607 F.3d 923
(Cite as: 607 F.3d 923)
basis or requiring that the documents, and other
submissions that reference them, be filed under seal.
Fed.Rules Civ.Proc.Rule 26(c)(1)(G), 28 U.S.C.A.
*927 Celeste L. Koeleveld, Executive Assistant
Corporation Counsel (Michael A. Cardozo,
Corporation Counsel, *928Tonya Jenerette , Peter G.
Farrell, of counsel), Corporation Counsel of the City
of New York, New York, NY, for DefendantsPetitioners.
Christopher Dunn, (Arthur Eisenberg and Mohammed
Gangat, on the brief), New York Civil Liberties Union
Foundation, New York, NY, for PlaintiffsRespondents, Dinler, et al., and Schiller, et al.
Jonathan C. Moore, (Clare Norins, on the brief),
Beldock Levin & Hoffman LLP, New York, NY, for
Plaintiffs-Respondents MacNamara and putative class
members.
Before: CABRANES, WESLEY, and LIVINGSTON, Circuit Judges.
JOSÉ A. CABRANES, Circuit Judge:
The question presented is whether we should issue
a writ of mandamus to overturn an order of the United
States District Court for the Southern District of New
York (Richard J. Sullivan, Judge ) granting a motion
to compel the production of certain sensitive
intelligence reports prepared by undercover officers of
the New York City Police Department (“NYPD”). In
answering that question, we are called upon to
examine the circumstances in which the so-called “law
enforcement privilege” must yield to the needs of a
party seeking discovery in a civil action.
Plaintiffs-respondents
(“plaintiffs”
or
“respondents”) are protesters and other persons who
were arrested, detained, and fingerprinted after
demonstrating at the 2004 Republican National
Convention (“RNC”) in New York City. They brought
the underlying suits under 42 U.S.C. § 1983 and state
law claiming that their arrest and treatment at the
hands of the NYPD violated the United States
Constitution and New York law.
During pretrial discovery proceedings, plaintiffs
brought a motion to compel the City to produce
roughly 1800 pages of confidential reports created by
undercover NYPD officers who were investigating
potential security threats in the months before the
RNC. (Using the NYPD's parlance, we refer to these
1800 pages of reports as the “Field Reports” or simply
the “Reports.”) The City opposed the motion to
compel by asserting, among other things, that the
documents were protected from disclosure by the law
enforcement privilege.
Magistrate Judge James C. Francis IV, assigned by the District Court to address all
FN1
“[g]eneral [p]retrial” matters in the litigation, granted
plaintiffs' motion to compel. The City filed objections
to that decision with Judge Sullivan, see Fed.R.Civ.P.
72(a), and Judge Sullivan affirmed Magistrate
Judge Francis's order in
its
entirety,
MacNamara v. City of N.Y., Nos. 04 Civ. 9216, 04
Civ. 7922, 04 Civ. 7921, 2009 WL 4789421
(S.D.N.Y. Dec.14, 2009). (For the remainder of this
opinion, we will refer to the rulings of Magistrate
Judge Francis and Judge Sullivan collectively as the
rulings of the “District Court.”) The City then filed this
petition for a writ of mandamus seeking relief from the
order granting plaintiffs' motion to compel.
FN1. See Schiller v. City of N.Y., No. 04 Civ.
7922, Docket Entry No. 40 (S.D.N.Y. Oct.
14, 2005) (referring the underlying action to
Magistrate Judge Francis for “General
Pretrial” purposes, including “scheduling,
discovery, non-dispositive pretrial motions,
and settlement”).
We hold that the City's petition presents an
“exceptional circumstance [ ]” warranting the
“extraordinary remedy” of a writ of mandamus.
Cheney v. U.S. Dist. Court for Dist. of Columbia,
542 U.S. 367, 380, 124 S.Ct. 2576, 159 L.Ed.2d 459
(2004) (internal quotation marks omitted). We reach
that conclusion for the following reasons:
© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.
Page 11
607 F.3d 923
(Cite as: 607 F.3d 923)
*929 First, a writ of mandamus is the only
“adequate means” for the City to seek review of the
District Court's order and thereby prevent the
irreparable harm that the City-and thus the
publicwould suffer from the disclosure of the Field
Reports. See id. (internal quotation marks omitted). In
particular, we reject the idea that the secrecy of the
Field Reports can be protected by disclosing them on
an “attorneys' eyes only” basis and filing them “under
seal.” We have no trouble concluding, therefore, that
an appeal after a final judgment is not an “adequate
means” for the City to “attain the relief [it] desires.”
Id. (internal quotation marks omitted).
Second, because we have never before addressed
the circumstances in which the law enforcement
privilege must yield to a party's need for discovery,
this petition presents “novel and significant
question[s] of law ... whose resolution will aid in the
administration of justice.” In re S.E.C. ex rel. Glotzer,
374 F.3d 184, 187 (2d Cir.2004) (internal quotation
marks omitted). We are therefore “satisfied,” in “the
exercise of [our] discretion,” that “the writ is
appropriate under the circumstances.” Cheney, 542
U.S. at 381, 124 S.Ct. 2576.
Third, we conclude that the City has a “clear and
indisputable” right to the writ, id. (internal quotation
marks omitted), because the District Court
indisputably “abused its discretion” in making three
distinct errors. Specifically, after determining that the
law enforcement privilege applied, the District Court
indisputably erred in failing to apply a “strong
presumption against lifting the privilege.”
Dellwood Farms v. Cargill, Inc., 128 F.3d 1122, 1125
(7th Cir.1997). The District Court also indisputably
erred in failing to require that plaintiffs show a
“compelling need” for the Field Reports. Cf. Marriott
Int'l Resorts, L.P. v. United States, 437 F.3d 1302,
1307 (Fed.Cir.2006). Finally, the District Court made
a clearly erroneous assessment of the evidence when
it found that plaintiffs' need for the Field Reports
outweighed the public's interest in their secrecy. Each
of these errors may, on its own, merit a writ of
mandamus, but taken together, they easily establish
that the City has a “clear and indisputable” right to the
writ.
Accordingly, we grant the City's petition for a
writ of mandamus; we vacate the December 10,
FN2 2009 order
of the District Court; and we instruct the District Court
to deny plaintiffs' motion to compel the production of
the Field Reports.
FN2. Although the District Court's order is
dated December 10, 2009, it was not entered
on the District Court's docket until December
14, 2009.
BACKGROUND
In February 2003, Mayor Michael Bloomberg
announced that the 2004 Republican National
Convention would be held in New York City.
Immediately thereafter, the NYPD began developing
plans to maintain order and safety during the event.
The NYPD was mindful of the City's status as a prime
target of international terrorism, and the NYPD was
keenly aware that a large political event could attract
anarchist violence and unlawful civil disobedience.
To address those concerns, David Cohen, the
NYPD's Deputy Commissioner of Intelligence
(“Commissioner Cohen”), researched the security
threat posed by violent protests at other large political
events. Based on his analysis of the chaos and violence
caused by recent protests in other metropolitan areas,
including recent large-scale protests in Seattle and
Miami, Commissioner Cohen concluded that even a
small extremist element could
trigger
spiraling*930 violence
at
large
political FN3
demonstrations. App. to Pet. for Writ of Mandamus
(hereinafter “App.”) 126-29 (Cohen Decl., June 6,
2007, Ex. A at 8-11). Accordingly, Commissioner
Cohen and the NYPD's Intelligence Division
recognized that the NYPD needed a strategy to avoid
disorder and violence during the RNC.
FN3.
To
reach
this
conclusion,
Commissioner Cohen analyzed the “ratio of
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violence and civil disorder to law[-]abiding
protest[e]r crowd size” during large political
events hosted in eight cities between 1999
and 2004. Pet. 5 (citing Cohen Decl., June 6,
2007, Ex. A at 8-11). For example, during the
World Trade Organization meetings held in
Seattle in 1999, roughly two hundred
anarchist vandals turned antiglobalization
protests into violent riots, leading to a
collapse in the World Trade Organization
meetings. See App. 126-27 (Cohen Decl.,
June 6, 2007, Ex. A at 8-9); see also Kim
Murphy, Anarchists Deployed New Tactics
in Violent Seattle Demonstrations, L.A.
Times, Dec. 16, 1999, at A3. These riots were
later called the “Battle in Seattle.” See, e.g.,
Robert A. Jordan, Battle in Seattle Sent a
Message, Boston Globe, Dec. 7, 1999, at D4.
Commissioner Cohen and the Intelligence Division
began to form that strategy by researching potential
extremist groups and their plans for disrupting the
RNC. Much of the research consisted of combing
through publicly available information on the Internet
for plans to disrupt the RNC with violence or
unlawful civil disobedience. The Intelligence
Division compiled the results of that research into
600 pages of so-called “End User Reports.”
Additionally, some members of the Intelligence
Division went undercover and infiltrated various
organizations to determine whether these
organizations had devised plans to disrupt the RNC.
The undercover officers prepared the Field Reports to
memorialize what they had learned in various meetings and discussions with members of the infiltrated
FN4 organizations.
FN4. Both the End User Reports and the
Field Reports are a part of the record before
us because they were part of the record upon
which the District Court issued the discovery
order at issue. The End User reports were
submitted to the District Court as Exhibit B
to the September 19,
2008 declaration of Assistant Corporation
Counsel Tonya Jenerette. The Field Reports
were submitted to the District Court for in
camera review on June 20, 2007. Schiller,
No. 04 Civ. 7922, Docket Entry No. 232
(S.D.N.Y. June 21, 2007).
With the help of Commissioner Cohen's analysis
and briefing regarding the threats outlined in the End
User Reports, the NYPD's RNC Executive
Committee-consisting of Police Commissioner
Raymond Kelly and other high-ranking NYPD
officials-formed a policing strategy for the RNC
known as the Mass Arrest Processing Plan (“the
Plan”). App. 266-67 (Def. Rule 72(a) Objections, Sept.
19, 2008, at 7-8). Of greatest importance here, the Plan
instructed NYPD officers not to issue summonses
but to arrest all RNC-related disorderly protestors.
FN5
The Plan also required that all arrestees be
fingerprinted to verify the identity of those in
custody.
Id.
FN5. A summons is “[a] writ or process
commencing the plaintiff's action and
requiring the defendant to appear and
answer,” Black's Law Dictionary 1574 (9th
ed.2009), presumably at some later date,
while an arrest would take the individual into
custody immediately, id. at 124 (defining
“arrest” as “the taking or keeping of a person
in custody by legal authority”). See
N.Y.Crim. P. Law §§ 150.10, 150.20; see
also Bryant v. City of N.Y., 404 F.3d 128 (2d
Cir.2005).
There were 800,000 individuals who protested in
New York City during the RNC. See Tr. of Oral
Argument, Apr. 19, 2010, at 19. Plaintiffs were among
the 1200 of those persons who were arrested and
processed according to the Plan. Resp. at 6. Many
plaintiffs were detained overnight, even though they
were only charged with minor, noncriminal offenses,
all of which were eventually dismissed.
*931 In the fall of 2004, plaintiffs filed suit in the
District Court under 42 U.S.C. § 1983 and state law
alleging that the City and various NYPD officers
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(collectively “the City” or “defendants”) had violated
plaintiffs' rights under the United States Constitution
and New York law. They claimed, among other things,
that NYPD officers had arrested them without cause,
subjected them to unreasonably long periods of
detention, and
fingerprinted them without
authorization.
In addition to the suits filed by plaintiffs, a number
of other actions were brought in the District Court by
RNC protestors. One such action asserts claims on
behalf of a putative class of approximately 1200
people arrested at the RNC. Over forty similar actions
were consolidated in the District Court for “discovery
purposes.” Schiller, No. 04 Civ. 7922, Docket Entry
No. 33 (S.D.N.Y. September 21, 2005). As a result, all
discovery orders-such as the one at issue here-address
the scope of discovery for literally dozens of cases and
determine the documents that will be reviewed by over
fifty attorneys. See Tr. of Oral Argument, Feb. 23,
2010, at 7.
The discovery dispute that forms the basis of this
petition began mere days before the close of discovery,
when the City amended its mandatory disclosures
under Federal Rule of Civil Procedure 26(a) and
produced to plaintiffs the 600 pages of End User
Reports. See Schiller v. City of N.Y., Nos.
04 Civ. 7922, 04 Civ. 7921, 2007 WL 735010, at * 12 (S.D.N.Y. Mar.12, 2007). Because the Reports had
been turned over so late in the discovery process,
Magistrate Judge Francis allowed plaintiffs to “reopen
discovery in order to explore fully the newly disclosed
information.” Id. at *5.
Plaintiffs then deposed Commission Cohen and
learned that the NYPD had in its possession the undercover Field Reports prepared in anticipation of FN6
the RNC. Plaintiffs requested that the City produce the
Field Reports, as well as “[a]ll documents” containing
information about “individuals, groups, or entities
connected to demonstrations expected to take place in
New York City in conjunction with the Republican
National Convention.” Schiller v. City of N.Y., Nos. 04
Civ. 7922, 04 Civ. 7921, 2007 WL 1461378, at *2
(S.D.N.Y. May 18, 2007) (quoting “Plaintiff's Sixth
Request for Documents”).
FN6. Plaintiffs have explicitly stated that
they are not challenging the legality of those
undercover operations in the underlying
actions. Plaintiffs challenge only their arrest,
detainment, and fingerprinting which
resulted from their conduct at the RNC.
The City objected to the request on the grounds
that it was (1) overbroad, (2) not likely to lead to the
discovery of admissible evidence, and (3) seeking
information protected by the law enforcement
privilege. Id. Plaintiffs filed a motion to compel the
City to produce the Field Reports. Id. at *1.
In a series of rulings, Magistrate Judge Francis
first determined that the Field Reports were broadly
relevant to plaintiffs' case. Id. at *2-3. Next, Magistrate
Judge Francis determined that the Field Reports could,
notwithstanding the law enforcement privilege, be
disclosed to plaintiffs with certain information
contained in the Reports redacted. See Schiller v. City
of N.Y., 244 F.R.D. 273, 279, 281 (S.D.N.Y.2007). He
then redacted certain portions of documents and
ordered that they be disclosed on an “attorneys' eyes
only” basis. Id. at 281. He directed plaintiffs to store
the documents at the office of the New York Civil
Liberties Union. Id. at 279 n.
11.
*932 The City filed objections to that order
with Judge Sullivan. See App. 255; Fed.R.Civ.P. FN7
72(a). Relying on Commissioner Cohen's declarations,
the City argued that the intelligence documents were
not relevant to plaintiffs' case, that the law
enforcement privilege protected the documents from
disclosure, and that the Magistrate Judge's procedures
for protecting the documents-redacting them and
disclosing them on an “attorneys' eyes only” basiswere inadequate to protect the documents' secrecy. See
App. 274, 300. In December 2009, Judge Sullivan
rejected the City's arguments and affirmed the
Magistrate Judge's order in a careful and conscientious
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memorandum and order. MacNamara, 2009 WL
4789421.
FN8. The panel consisted of Judges
Cabranes and Parker, as well as Judge
Stefan R. Underhill, of the United States
District Court for the District of Connecticut,
who was sitting by designation. See Order,
Mar. 12, 2010.
in the federal courts ... to confine the court against
which mandamus is sought to a lawful exercise of its
prescribed jurisdiction.” Cheney, 542 U.S. at 380, 124
S.Ct. 2576 (brackets and internal quotation marks
omitted). Although we do not, in this context, employ
“an arbitrary and technical definition of ‘jurisdiction,’
” we nevertheless issue a writ of mandamus only in
“exceptional circumstances amounting to a judicial
‘usurpation of power’ or a ‘clear abuse of discretion.’
” Id. (citations and some internal quotation marks
omitted); see also Sims v. Blot, 534 F.3d 117, 132 (2d
Cir.2008) (“A district court has abused its discretion if
it [has] based its ruling on an erroneous view of the
law or on a clearly erroneous assessment of the
evidence or [has] rendered a decision that cannot be
located within the range of permissible decisions.”
(brackets, citations, and internal quotation marks
omitted)).
[3] There are three conditions that must be
established before a writ of mandamus may issue (we
list these conditions in the order in which we discuss
them below): (1) “the party seeking issuance of the
writ must have no other adequate means to attain the
relief [it] desires”; (2) “the issuing court, in the
exercise of its discretion, must be satisfied that the writ
is appropriate under the circumstances”; *933 and (3)
the petitioner must demonstrate that the “right to
issuance of the writ is clear and indisputable.” Cheney,
542 U.S. at 380-81, 124 S.Ct. 2576 (brackets,
citations, and internal quotation marks omitted);
accord Kerr v. U.S. Dist. Court for N. Dist. of Cal.,
426 U.S. 394, 403, 96 S.Ct. 2119, 48 L.Ed.2d 725
(1976).
We now consider the City's petition for a writ of
mandamus.
Each of those conditions has been established in
the situation presented here.
DISCUSSION
[1][2] The All Writs Act empowers this Courtas
well as “all courts established by Act of Congress”-to
“issue all writs necessary or appropriate in aid of their
respective jurisdictions and agreeable to the usages
and principles of law.” 28 U.S.C. § 1651(a). One such
writ is the writ of mandamus, an “extraordinary
remedy” that has been used “both at common law and
I. The City Has “No Other Adequate Means to
Obtain the Relief [It] Desires”
[4] The City seeks a writ of mandamus to
overturn an order of the District Court requiring the
City to disclose, in discovery proceedings, 1800 pages
of undercover Field Reports to over fifty attorneys
representing a putative class of some 1200 individuals
who were arrested at the RNC. See Resp. at 6. We are
satisfied that a writ of mandamus is the only
FN7. This Rule provides in relevant part:
When a pretrial matter not dispositive of a
party's claim or defense is referred to a
magistrate judge to hear and decide, the
magistrate judge must ... issue a written
order stating the decision. A party may
serve and file objections to the order within
14 days after being served with a copy. A
party may not assign as error a defect in the
order not timely objected to. The district
judge in the case must consider timely
objections and modify or set aside any part
of the order that is clearly erroneous or is
contrary to law.
Fed.R.Civ.P. 72(a).
The City then filed this petition for a writ of
mandamus and moved in this Court for a stay of the
District Court's order pending consideration of the
petition. On January 27, 2010, Judge Wesley granted
a temporary stay, and on March 12, 2010, a
panel of our Court granted a stay pending considerFN8
ation of the petition.
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“adequate” means for the City to challenge that order.
Cheney, 542 U.S. at 380, 124 S.Ct. 2576.
[5] First, it is clear that the City cannot challenge
the District Court's order by means of an interlocutory
appeal. As the Supreme Court has recently clarified,
the “collateral order doctrine does not extend to
disclosure orders adverse to” a claim of privilege.
Mohawk Indus., Inc. v. Carpenter, --U.S. ----, 130
S.Ct. 599, 609, 175 L.Ed.2d 458 (2009) (holding that
a party may not bring an interlocutory appeal of an
order denying a claim of attorney-client privilege).
Instead, the Court has made clear that a party who
loses a claim of privilege must pursue other “avenues
of review apart from collateral order appeal,”
including, “in extraordinary circumstances,” a
“petition [to] the court of appeals for a writ of
mandamus.” Id. at 607 (explaining that mandamus
remains available in the event of “a particularly
injurious ... privilege ruling”).
Second, a certified appeal under 28 U.S.C. §
1292(b) is not an “adequate means” for the City to
FN9
challenge the District Court's order. The certification
of an interlocutory appeal under that statute, which is
entirely a matter of discretion for the District Court, is
appropriate only when “an immediate appeal from the
order may materially advance the ultimate termination
of the litigation.” 28 U.S.C. § 1292(b). Although the
Supreme Court has recognized that the review of some
discovery orders might involve “controlling
question[s] of law, the prompt resolution of which may
materially advance the ultimate termination of the
litigation,” Mohawk Indus., 130 S.Ct. at 607 (internal
quotation marks omitted), the discovery order at issue
here would not have qualified for § 1292(b)
certification because prompt appellate review of this
order would not speed the District Court's
consideration of the merits of the parties' claims or
defenses-for no matter how the discovery dispute is
resolved, the District Court must then proceed to
resolve the merits of plaintiffs' claims, whether by trial
or by dispositive motion. Accordingly, a decision on
the discovery dispute at issue here will not *934
“materially advance the ultimate termination of the
litigation,” id., and thus § 1292(b) is not an “adequate
means” for the City to obtain the relief it desires.
FN9. This statute provides in relevant part:
When a district judge, in making in a civil
action an order not otherwise appealable
under this section, shall be of the opinion
that such order involves a controlling
question of law as to which there is
substantial ground for difference of
opinion and that an immediate appeal from
the order may materially advance the
ultimate termination of the litigation, he
shall so state in writing in such order.
The Court of Appeals which would have
jurisdiction of an appeal of such action
may thereupon, in its discretion, permit an
appeal to be taken from such order, if
application is made to it within ten days
after the entry of the order....
28 U.S.C. § 1292(b).
Third, a contempt order is not an “adequate
means” for the City to challenge the District Court's
ruling. Of course, were the City not a party, it could
obtain relief by disobeying the District Court's order
and inviting civil contempt sanctions, which are
immediately appealable when imposed on nonparties.
See Lamb v. Cramer, 285 U.S. 217, 219-21, 52 S.Ct.
315, 76 L.Ed. 715 (1932); United
States v. Johnson, 801 F.2d 597, 599 (2d Cir.1986)
(“[A] non-party witness may immediately appeal an
order of civil contempt.”). But because the City is a
party, it can only appeal a civil contempt sanction after
a final judgment. See Fox v. Capital Co., 299 U.S. 105,
107, 57 S.Ct. 57, 81 L.Ed. 67 (1936); Johnson, 801
F.2d at 599 (“[A] party to a pending proceeding may
not appeal from an order of civil contempt except as
part of an appeal from a final judgment.”).
[6] We acknowledge that a party to an action may
immediately appeal an order of criminal contempt, and
thus the City could theoretically (a) disobey the
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District Court's order, (b) be held in criminal contempt,
and then (c) bring an immediate appeal. See In re
Christensen Eng'g Co., 194 U.S. 458, 459-61, 24 S.Ct.
729, 48 L.Ed. 1072 (1904); In re Air Crash at Belle
Harbor, N.Y. on Nov. 12, 2001, 490 F.3d 99, 104 (2d
Cir.2007). But because the choice of sanctions-civil or
criminal-is vested in the discretion of the District
Court, see In re Weiss, 703 F.2d 653, 664 (2d
Cir.1983), the City does not know whether the District
Court would punish its disobedience with an
appealable criminal sanction or an “onerously coercive
civil contempt sanction with no means of review until
the perhaps far distant day of final judgment,” 15B
Charles Alan Wright, Arthur R. Miller & Edward C.
Cooper, Federal Practice and Procedure § 3914.23, at
146 (2d ed.1992). We therefore conclude, along with
our sister Circuits, that the “uncertainty” of seeking a
criminal contempt order “bespeaks its inadequacy in
this case.” In re Sealed Case No. 98-3077, 151 F.3d
1059, 1065 (D.C.Cir.1998); see also Sporck v.
Peil, 759 F.2d 312, 315 & n. 4 (3d Cir.1985) (holding,
in the context of a mandamus petition, that the
disobedience-and-contempt path is not an “adequate
means to obtain the relief sought”).
Finally, an appeal after a final judgment is not, in
the situation presented, an “adequate means” for the
City to obtain the relief it seeks. If the City hands over
the Field Reports now, the sensitive information
contained in the Reports will, upon final judgment,
“already have been exposed.” In re von Bulow, 828
F.2d 94, 99 (2d Cir.1987). As Judge Kearse has
succinctly explained, “a remedy after final judgment
cannot unsay the confidential information that has
been revealed.” Sims, 534 F.3d at 129
(internal quotation marks and punctuation omitted).
FN10
The inadequacies of an appeal after a final
judgment are especially apparent here, where the
information at issue involves a police department's
FN11 undercover investigations. See *935In re Dep't
of Investigation of the City of N.Y., 856 F.2d 481, 484
(2d Cir.1988) (noting that one purpose of the law
enforcement privilege is to protect witnesses and law
enforcement personnel).
FN10. In Sims v. Blot, we granted mandamus
relief to the petitioner who, like the City here,
challenged a district court's determination
that confidential information sought in
discovery was not privileged and therefore
must be disclosed. 534 F.3d at 142. Our
decision to do the same here is consistent
with this recent and important precedent of
our Court.
FN11. We do not know whether the
information contained in the field reports
pertains to ongoing investigations. After
reviewing the Field Reports, however, we are
confident that the techniques the undercover
officers used to investigate organizations
before the RNC-techniques that are outlined
in the Field Reports-are currently in use in
NYPD undercover operations.
We also reject the idea that an appeal after a final
judgment is an adequate remedy for the City, an idea
that is based upon the assumption that the District
Court's protective order will successfully prevent the
individual plaintiffs, and the general public, from
gaining access to the Field Reports as this action
proceeds to judgment. Indeed, it has frequently been
asserted-both here and in similar cases-that
confidential information can be protected by means of
two measures: disclosure of information on an
“attorneys' eyes only” basis and the filing of
information “under seal.” See, e.g., MacNamara, 2009
WL 4789421, at *5.
For the reasons that follow, we hold that neither
of those measures is adequate to protect the secrecy of
the Field Reports in this context.
A. Disclosure on an “Attorneys' Eyes Only” Basis
Is Inadequate
[7] The disclosure of confidential information on
an “attorneys' eyes only” basis is a routine feature of
civil litigation involving trade secrets. See
Fed.R.Civ.P. 26(c)(1)(G) (“The court may, for good
cause, issue an order to protect a party or person
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requiring that a trade secret or other confidential
research, development, or commercial information
not be revealed or be revealed only in a specified FN12
way ....”). The purpose of this form of limited *936
disclosure is to prevent a party from viewing the
sensitive information while nevertheless allowing the
party's lawyers to litigate on the basis of that
information.
FN12. In addition, the disclosure of
information on an “attorneys' eyes only”
basis is occasionally a feature of criminal
cases in which the government is required to
disclose
classified
national
security
information in order to protect “ ‘a criminal
defendant's right to present a meaningful
defense.’ ” See, e.g., In re Terrorist
Bombings of U.S. Embassies in E. Afr., 552
F.3d 93, 126 (2d Cir.2008) (quoting United
States v. Aref, 533 F.3d 72, 79 (2d Cir.2008)).
The use of the procedure in those cases does
not show that it is appropriate here.
As an initial matter, when classified
material is disclosed on an “attorneys' eyes
only” basis in criminal trials, a defendant's
attorneys must “possess[ ] the security
clearances necessary to review and inspect
such material.” Id. Here, plaintiffs have
made no showing that any of the fifty
attorneys representing them has a security
clearance-or other form of credentialvouching for their trustworthiness. Of
course, we have no basis to question-and
do not question-the integrity or
competence of the attorneys involved in
this litigation. But we are not able to make
blanket statements about the reliability of
counsel merely based on their membership
in the bar, for the record of the bar in such
matters is not without blemish. Indeed,
some attorneys have deliberately disclosed
confidential information. See, e.g., United
States v. Stewart, 590 F.3d 93 (2d
Cir.2009); Bob
Egelko, Lawyer Admits Leaking BALCO
Testimony, S.F. Chron., Feb. 15, 2007, at
A1. Moreover, mere negligence of an
attorney-rather
than
deliberate
malfeasance-could result in the unintended
disclosure of confidential information.
Furthermore, we are presented here with a
discovery request by a plaintiff in a civil
action, not a defendant in a criminal action.
We have no trouble concluding that a
plaintiff's right to discovery in a civil
action is less fundamental than a criminal
defendant's constitutional right “ ‘to
present a meaningful defense.’ ” In re
Terrorist Bombings, 552 F.3d at 126
(quoting Aref, 533 F.3d at 79).
In any event, as we explain in Part IV
below, the disclosure of information on an
“attorneys' eyes only” basis is an
appropriate measure insofar as the
information must, in fact, be disclosed. It
is, nonetheless, a deeply flawed procedure
that cannot fully protect the secrecy of
information in this case; it merely
mitigates-to some degree-the possibility of
unauthorized disclosure. Thus, the fact that
“attorneys' eyes only” disclosure has been
used as a mitigating procedure in criminal
cases-or in other civil litigationdoes not
alter our analysis.
Even if the “attorneys' eyes only” procedure
works in some commercial litigation, as well as some
criminal cases, see note 12, ante, the consequences of
accidental disclosure are too severe to employ the
procedure here. If a party in a commercial suit obtains
a competitor's trade secrets, at worst the party will gain
an unfair financial advantage over his competitor.
Though such an injury is serious, it involves money,
not public safety, and it can usually be remedied by an
injunction or money damages. Here, however,
accidental disclosure of the Field Reports risks
undermining
important
NYPD
investigatory
procedures and thereby endangering the safety of law
enforcement personnel and countless New York
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residents. Not only is that injury more severe, it is far
more difficult to remedy.
Furthermore, when a party in a commercial suit
gains access to trade secrets and uses them to his
advantage, it is, in many cases, obvious that an
unauthorized disclosure has occurred. That is not the
case, however, for confidential law enforcement
information, for there is often only ambiguous
evidence that an undercover operation had been
undermined-an unexpected event impairs an
investigation, an informant is suddenly isolated from
his collaborators, or a once-valuable source begins to
provide disinformation. Thus, if confidential law
enforcement information is disclosed on an “attorneys'
eyes only” basis, the police may never know if their
undercover operations have been compromised by an
unauthorized disclosure of that information.
What is more, when a party in a commercial suit
profits from an unauthorized disclosure of trade
secrets, his competitor often has little trouble
identifying the source of the disclosure. Yet it is, by
contrast, far more difficult to identify the source of an
unauthorized disclosure of law enforcement
information. In this very litigation, for example, the
City suspects that materials disclosed on an “attorneys'
eyes only” basis (pursuant to the District Court's
protective order) were used as the source of a
newspaper article discussing the secret operations of
the NYPD. Jim Dwyer, City Police Spied Broadly
Before G.O.P. Convention, N.Y. Times, Mar. 25,
2007, at A1. When the City sought an order directing
each of the more than fifty attorneys for the plaintiffs
to attest to their knowledge of any such disclosure,
Magistrate Judge Francis instead directed that the City
first establish its own blamelessness by “provid[ing]
declarations from everyone [on the defendants' side]
who had access to the Intelligence Documents.”
Schiller v. City of N.Y.,
No. 04 Civ. 7921, 2007 WL 1623108, at *4
FN13 (S.D.N.Y. June 5,
2007). Even if the City had been allowed to question
the plaintiffs' lawyers, the source might still have
remained elusive, and in any event, pursuing the
source of the disclosure would have arguably raised
significant issues regarding the rights of the press. See
generally N.Y. Times Co. v. Gonzales, 459 F.3d 160,
162 (2d Cir.2006).
FN13. It was never determined who made the
unauthorized disclosure. As the City asserts
in its petition, “the violation of the court's
confidentiality
order
escaped
any
consequences.” Pet. 55.
For these reasons, we hold that, in the
circumstances of this case, allowing the disclosure of
the Field Reports on an “attorneys' eyes only” basis
would provide insufficient protection for the
confidential *937 law enforcement information at
isFN14
sue. Accordingly, the “attorneys' eyes only” procedure
does not adequately mitigate the harm that could be
caused by requiring the City to wait for a final
judgment before appealing the District Court's order.
FN14. Again, in reaching this conclusion, we
do not question the integrity or competence
of the attorneys involved in this litigation.
B. Filing Under Seal Is Likewise Inadequate
[8] We also doubt that filing the Field Reports
under seal would adequately address the City's
legitimate concerns. Courts are public institutions
accustomed to making their files open to all comers,
and their methods of preserving confidentiality are
relatively unsophisticated and altogether too fallible.
The use of pseudonyms such as “John Doe,” for
example, can sometimes be more an invitation to
publicity than a shield of privacy. In addition, “sealed”
materials submitted for review only by a judicial
officer usually pass through many hands, and the
chances of disclosure-and difficulties in locating the
source of the disclosure-increase exponentially with
each pair of hands involved.
To make our point, we recite a few recent and
illuminating episodes, starting with incidents outside
our Circuit.
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Just weeks ago, redacted portions of a motion
filed by Rod Blagojevich, the former Governor of
Illinois, seeking a subpoena to compel President
Obama to testify at Blagojevich's upcoming criminal
trial accidentally became publically accessible for
several hours on the website of the United States
District Court for the Northern District of Illinois. John
Kass, Blagojevich Drags Obama into
His Three-Ring Circus, Chi. Trib., Apr. 23, 2010, at 2
(“While this is believed to have been a technical glitch
... this is Chicago. Do you believe in coincidence?”).
Sadly, that disclosure was not an aberration.
Consider just a few examples: In a Pennsylvania state
court proceeding, materials that had been filed under
seal as part of a high-profile divorce proceeding were
inadvertently posted for several days on a
Pennsylvania county court's publicly accessible
website. See Steve Twedt, Scaife Demands
Documents' Return, Pittsburgh Post-Gazette, Sept. 23,
2007, at A1; see also Gary Rotstein, Unclear How
Often Sealed Cases Opened by Accident, Pittsburgh
Post-Gazette, Sept. 23, 2007, at A1. A clerk in the
United States District Court for the Eastern District of
North Carolina inadvertently turned over a “sealed”
settlement agreement along with unsealed materials to
a reporter who asked to see the file in a pollution
lawsuit. See B. Drummond Ayres Jr., Press Freedom
at Issue in Use of ‘Sealed’ File by Paper and Reporter,
N.Y. Times, February 21, 1998, at A6. And documents
containing the name of the woman who accused the
basketball star Kobe Bryant of sexual assault, though
filed “under seal,” were twice posted on the publicly
accessible website of the Colorado State Judicial
Branch, and the full transcript of a “sealed” hearing in
the same case was inadvertently sent to seven news
organizations by email. Kirk Johnson, Name of Bryant
Case Accuser Is Again Mistakenly Released, N.Y.
Times, July 29, 2004, at A16.
Often such disclosures are benign; sometimes,
however, they risk the gravest of consequences. For
example, a recent post-9/11 detention case, the
existence of which was to be sealed altogether, was
revealed when it was listed inadvertently on the public
docket of the United States *938 Court of Appeals for
the Eleventh Circuit. Linda Greenhouse, News Groups
Seek to Open Secret Case, N.Y. Times, Jan. 5, 2004,
at A12. And a “sealed” affidavit in a visa fraud case
describing evidence related to the 9/11 attacks was
mistakenly unsealed, a mistake that was promptly
reported in a major newspaper. See David Johnston,
Officials Say Search Finds Hijacking-Related
Material, N.Y. Times, May 10, 2002, at A33.
Several similar instances have occurred in our
own Circuit, which often witnesses high-profile
litigation covered by a large and intrepid press corps.
For example, the name of a plaintiff in a “sealed” case
challenging the FBI's issuance of a “national security
letter” was disclosed when a website operated by the
United States District Court for the District of
Connecticut inadvertently made the name available to
the public. Alison Leigh Cowan, Judges Question
Patriot Act in Library and Internet Case, N.Y. Times,
Nov. 3, 2005, at B5. See generally Doe v. Gonzales,
386 F.Supp.2d 66
(D.Conn.2005). Similarly, the subjects of a grand jury
investigation were revealed when a “John Doe” case
in the United States District Court for the Eastern
District of New York was listed under the real name
on the argument calendar. Andrew Blum, Defense
Work in Pan Am Case Probed[:] Possible Perjury,
Fraud and Litigation Abuse Examined, Nat'l L.J.,
Sept. 18, 1995, at A6. See generally In re Richard Roe,
Inc., 68 F.3d 38 (2d Cir.1995). And in the first World
Trade Center bombing case in the United States
District Court for the Southern District of New York,
a “sealed” motion to identify a confidential informant
was inadvertently disclosed. Alison Mitchell, Files
Say U.S. Had Informer in Bomb Case, N.Y. Times,
May 11, 1993, at B1.
Indeed, our own Court is not unblemished in this
regard. As reported in the Washington Post:
[N]ew details about the FBI's allegedly aggressive
[interrogation] tactics ... were included in a ruling
briefly issued ... by the U.S. Court of Appeals for
the 2nd Circuit, which reinstated a civil lawsuit
brought ... against the FBI and [an FBI agent]. In an
unusual move, however, the appeals court withdrew
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the first opinion within minutes on Thursday and
issued a second opinion Friday, with the details of
[plaintiff] Higazy's allegations removed.
Dan Eggen, Second Court Ruling Redacts
Information About Interrogation, Wash. Post, Oct. 25,
2007, at A10; Higazy v. Templeton, 505 F.3d 161, 166
(2d Cir.2007) (“This opinion has been redacted
because portions of the record are under seal.”). Even
though the opinion in Higazy was withdrawn “within
minutes,” the disclosure could not be undone. See, e.g.,
Jim Dwyer, Roots of False
Confession: Spotlight Is Now on the F.B.I., N.Y. FN15
Times, Oct. 31, 2007, at B1.
FN15. The examples cited in the foregoing
paragraphs all refer to unintentional, and
perhaps negligent, disclosures of sealed
information. Much less commonly, a court
employee can deliberately disclose sealed
material. See, e.g., Former Court Clerk
Admits Disclosing Information in Newton
Case, The Day (New London), May 2,
2006, at C7; Leonard Buder, Former Court
Clerk Admits Giving Information to Mob,
N.Y. Times, May 30, 1987, § 1, at 35.
In light of how often there are all-too-human
lapses with material filed “under seal,” we cannot
conclude with confidence that filing the Field Reports
under seal would protect the information. Even if the
Field Reports were not “filed” on the District Court's
docket at all, were they disclosed to plaintiffs' counsel
they would inevitably be referenced in the parties'
affidavits, memoranda of law, Rule 56.1 statements,
and the like-not to mention *939 future District Court
decisions-and we cannot conclude with confidence
that filing those documents under seal would protect
the confidential information contained in the Field
Reports.
***
In sum, because the City cannot bring an
immediate appeal under the collateral order doctrine or
by inviting an order of civil contempt, there are only
three avenues by which the City can challenge the
disclosure of the Field Reports: (1) a certified
interlocutory appeal under 28 U.S.C. § 1292(b), (2) an
immediate appeal of an order of criminal contempt,
and (3) an appeal after a final judgment. For the
reasons set forth above, we hold that neither a certified
interlocutory appeal under 28 U.S.C. § 1292(b) nor an
order of criminal contempt provides an “adequate
means” for the City to challenge the District Court's
discovery order. In addition, we hold that neither
disclosure on an “attorneys' eyes only” basis nor the
filing of documents “under seal” is suitable to protect
the confidential law enforcement information at issue
here, and thus an appeal after a final judgment is not
an “adequate means” for the City to vindicate its claim
to law enforcement privilege. We conclude, as a result,
that the first condition for a writ of mandamus is
established: “the party seeking issuance of the writ
[has] no other adequate means to attain the relief [it]
desires.” Cheney, 542 U.S. at 380, 124 S.Ct. 2576.
II. A Writ of Mandamus Is “Appropriate Under
the Circumstances”
We now turn to whether mandamus is
“appropriate under the circumstances.” Cheney, 542
U.S. at 381, 124 S.Ct. 2576.
Although we have “expressed reluctance” to issue
writs of mandamus to overturn discovery rulings, see
Glotzer, 374 F.3d at 187 (internal quotation marks
omitted), we have recognized that when a discovery
question “is of extraordinary significance or there is
extreme need for reversal of the district court's
mandate before the case goes to judgment,” mandamus
can serve as a legitimate “escape hatch[ ] from the
finality rule,” Am. Express Warehousing, Ltd. v.
Transamerica Ins. Co., 380 F.2d 277, 282 (2d
Cir.1967). The Supreme Court has also recognized, as
recently as 2009, the ability of mandamus to “serve as
[a] useful safety valve[ ] for promptly correcting
serious errors” or “a particularly injurious ... privilege
ruling.” Mohawk Indus., 130 S.Ct. at 607-08 (internal
quotation marks omitted).
[9]
To
determine
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whether
mandamus
is
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607 F.3d 923
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“appropriate” in the context of a discovery ruling, we
look primarily for “ ‘the presence of a novel and
significant question of law ... and ... the presence of
a legal issue whose resolution will aid in the
adminFN16
istration of justice.’ ” Glotzer, 374 F.3d at 187 (quoting
United States v. Coppa, 267 F.3d 132,
137-38 (2d Cir.2001)); see also Sims, 534 F.3d at
128-29 (“Although mandamus is generally
unavailable as a means of reviewing district court
discovery orders, the writ is appropriate to *940
review discovery orders that involve privilege where
(i) the petition raises an issue of importance and of first
impression; (ii) the petitioner's privilege will be lost if
review must await final judgment; and (iii) immediate
resolution will avoid the development of discovery
practices or doctrine undermining the privilege.”)
(quoting In re Long Island Lighting Co., 129 F.3d 268,
270 (2d Cir.1997)(“ LILCO ”)).
FN16. A writ of mandamus may also be
available if there is an “ ‘extreme need for
reversal of the district court's mandate.’ ”
Glotzer, 374 F.3d at 187 (quoting von Bulow,
828 F.2d at 97). For example, the Supreme
Court has granted the writ “to restrain a lower
court when its actions would threaten the
separation of powers by ‘embarrass[ing] the
executive arm of the Government’ or result
in the ‘intrusion by the federal judiciary on a
delicate area of federal-state relations.’ ”
Cheney, 542 U.S. at 381, 124 S.Ct. 2576
(citations omitted) (quoting Ex parte Peru,
318 U.S. 578, 588, 63 S.Ct. 793, 87 L.Ed.
1014 (1943); Will v. United States, 389 U.S.
90, 95, 88 S.Ct. 269, 19 L.Ed.2d 305 (1967)).
Both of those factors are present in this petition,
as it raises several “novel and significant question[s]
of law,” as well as “legal issue[s] whose resolution will
aid in the administration of justice.” Glotzer, 374 F.3d
at 187.
A. This Petition Raises “Novel and Significant
Question[s] of Law”
[10][11] We are mindful that “an allegedly
incorrect application of a well-developed principle”
does not, by itself, give rise to “ ‘such a novel and
important issue as to warrant mandamus review.’ ”
LILCO, 129 F.3d at 271 (quoting In re W.R. Grace &
Co., 984 F.2d 587, 589 (2d Cir.1993)). But because
this petition requires us to clarify so many aspects of
our standard for addressing claims of law enforcement
privilege, we conclude that this petition raises
sufficiently “novel and significant question[s] of law” to justify a writ of mandamus. FN17
Glotzer, 374 F.3d at 187.
FN17. We note that Cheney requires only that
we consider whether the writ of mandamus is
“appropriate under the circumstances.”
Cheney, 542 U.S. at 381, 124 S.Ct. 2576. If a
petition raises a novel question of law, it is
more likely that we will conclude that
mandamus is appropriate. Applying Cheney,
however, a petition need not present a novel
question of law to warrant the writ of
mandamus; the writ need only be
“appropriate under the circumstances.” Id.
The writ of mandamus could be appropriate,
for example, if a district court ruling
flagrantly misapplies a well-settled principle
of law. In that instance, the petition might not
present a novel question, but the writ of
mandamus may nevertheless be “appropriate
under the circumstances.” Id.
We have rarely considered the scope of the law
enforcement privilege; our last case to do so was
decided over twenty years ago. See Dep't of
Investigation, 856 F.2d at 481. There is, as a result, a
critical aspect of our jurisprudence that remains
undeveloped: although we have provided some
guidance about the kind of information to which the
law enforcement privilege applies, see, e.g., id. at 48386, we have never had an occasion to address how a
court should proceed once it establishes that the
information at issue is subject to the privilege.
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That is, because the law enforcement privilege is
a qualified privilege, not an absolute privilege, there
are circumstances in which information subject to the
privilege must nevertheless be disclosed. We have
never addressed how a court should determine whether
such a circumstance exists, and it is that critical aspect
of our jurisprudence that we are required to address in
this petition. In particular, as set forth in greater detail
below, this petition requires us to clarify (1) the legal
standard for evaluating whether the law enforcement
privilege should give way to a party's need for
discovery, (2) the factors to be weighed in applying
that standard, (3) whether there is a presumption
against disclosure, and (4) if there is such a
presumption, the extent of the showing that a party
must make to overcome it. Each of those issues
presents a “novel ... question of law.” Glotzer, 374
F.3d at 187.
[12] Each of those issues also presents a
“significant question of law.” Id. (emphasis added).
Although it is rarely raised on appeal, the law
enforcement privilege plays a critical role in litigation
involving the government. The purpose of the
privilege,*941 as we have observed in the past, is “to
prevent disclosure of law enforcement techniques and
procedures, to preserve the confidentiality of sources,
to protect witness and law enforcement personnel, to
safeguard the privacy of individuals involved in an
investigation, and otherwise to prevent interference
with an investigation.” Dep't of Investigation, 856 F.2d
at 484; accord United States v. Amodeo, 44 F.3d 141,
147 (2d Cir.1995). Those goals are of such importance
that the privilege, though it developed at common law from
exFN18
ecutive privilege,
has been largely incorporFN19
ated into both New York state and federal FN20
statutory law. *942Dep't of Investigation , 856 F.2d at
483 & nn. 1-2. It is hard to imagine, therefore, many
“question[s] of law” that carry greater “significan[ce]”
than the question of when the goals of the law
enforcement privilege must give way to a party's need
for discovery. Glotzer, 374 F.3d at 187.
FN18. The law enforcement privilege is
related to, and indeed an outgrowth of, the
executive privilege long recognized at
common law. The law enforcement privilege
“shares with those [privileges] typically
labeled ‘executive’ a justification rooted in
the need to minimize disclosure of
documents whose revelation might impair
the necessary functioning of a department of
the executive branch.” Black v.
Sheraton Corp. of Am., 564 F.2d 531, 541-42
(D.C.Cir.1977). The interests that underlie the
privilege are “rooted in common sense as well as
common law” and, like other common law privileges,
the law enforcement privilege is subject to “pragmatic
adjustment to the needs of sound government.” Id. at
542.
In 1957 the Supreme Court explicitly recognized an
“informer's privilege”-that is, the “[g]overnment's
privilege to withhold from disclosure the identity of
persons who furnish information of violations of
law to officers charged with enforcement of that
law.” Roviaro v. United States, 353 U.S. 53, 59, 77
S.Ct. 623, 1 L.Ed.2d 639 (1957). As we and many
of our sister Circuits have noted, however, the law
enforcement privilege is not limited to protecting
the identity of informers. See Dep't of Investigation,
856 F.2d at 484; see also In re U.S. Dep't of
Homeland Sec., 459 F.3d 565, 569 (5th Cir.2006)
(collecting cases and noting that “case law has
acknowledged the existence of a law enforcement
privilege beyond that allowed for identities of
confidential informants”).
The law enforcement privilege was also recognized
in the proposed Federal Rules of Evidence
promulgated by the Supreme Court in 1974.
Although specific rules governing the various
common law privileges were ultimately rejected by
Congress in favor of the broad and flexible Rule
501, see Fed.R.Evid. 501 (providing that the rules
of privilege “shall be governed by the principles of
the common law as they may be interpreted by the
courts of the United States in light of reason and
experience”), the rejected Rules provide
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considerable guidance to courts attempting to
discern the “principles of the common law.” Cf.
United States v. Gillock, 445 U.S. 360,
367-68, 100 S.Ct. 1185, 63 L.Ed.2d 454
(1980) (noting that the absence of a
proposed Rule covering a particular
privilege “suggest[s] that the claimed
privilege was not thought to be ... indelibly
ensconced in our common law”). Two
proposed rules encompassed concepts now
embodied in the law enforcement
privilege. Proposed Rule 509, titled
“Secrets of State and Other Official
Information,” specifically covered, among
other things, “investigatory files compiled
for law enforcement purposes.” See 3 Jack
B. Weinstein & Margaret A. Berger,
Weinstein's Federal Evidence § 509.01
(Joseph M. McLaughlin ed., Matthew
Bender 2d ed.2001). Proposed Rule 510,
titled “Identity of Informer,” permitted the
“government or a state or a subdivision
thereof ... to refuse to disclose the identity
of a person who has furnished information
relating to or assisting in an investigation
of a possible violation of law to a law
enforcement officer.” See id. § 510.01.
Thus, despite its recent origins, the law
enforcement privilege is grounded in wellestablished doctrine and is widely
recognized by the federal courts.
FN19. For example, under New York's
Freedom of Information Law, many records
created by law enforcement agencies are
exempt from disclosure. See N.Y. Pub. Off.
Law § 87(2)(e) (McKinney 2001). This
statutory protection, of course, does not
apply in the litigation context, but the clear
exemption of certain law enforcement
materials from disclosure under state law
suggests that the New York state legislature
explicitly recognizes the importance of
maintaining the confidentiality of certain law
enforcement materials.
FN20. The Federal Freedom of Information
Act, or FOIA, contains an exemption for
“records or information compiled for law
enforcement purposes” provided that
disclosure of such information could have
harmful consequences. See 5 U.S.C. §
552(b)(7).
Accordingly, we hold that this petition presents
sufficiently “novel and significant question[s] of law”
to justify a writ of mandamus. Id.
B. Resolving the Issues Raised in this Petition
“Will Aid in the Administration of Justice”
[13] In determining whether a petition presents a
“legal issue whose resolution will aid in the
administration of justice,” id., we think it is
appropriate to consider “the administration of justice”
both in terms of a district court applying the law and
in terms of a potential litigant organizing his affairs in
the shadow of the law.
As for the district courts, we have previously
recognized that the resolution of a novel and
significant privilege question in a mandamus
proceeding will “aid the administration of justice.” von
Bulow, 828 F.2d at 99. Addressing the merits of this
petition, for example, may “forestall future error in
trial courts” by correcting a privilege determination
with a potentially broad applicability and influence. Id.
(internal quotations omitted); see also LILCO, 129
F.3d at 271; Chase Manhattan Bank, N.A. v. Turner &
Newall, PLC, 964 F.2d 159, 163-64 (2d
Cir.1992). Indeed, by clarifying the circumstances
under which the law enforcement privilege must (and
must not) yield to a party's need for discovery, we will
provide guidance for the courts of our Circuit in an
important, yet underdeveloped, area of law.
As for potential litigants, we have recognized that,
for a privilege to serve its intended function, potential
litigants must be able to predict which of their
materials will be protected by the privilege.
See von Bulow, 828 F.2d at 100; cf. George A.
Davidson & William H. Voth, Waiver of the AttorneyClient Privilege, 64 Or. L.Rev. 637, 639 (1986)
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(describing the “need for certainty and predictability
inherent in the purpose of the [attorney-client]
privilege”); id. at 666 (“Decisions on questions of
privilege may have a far more profound effect on the
administration of justice than the decisions on
questions of substantive law to which judges give most
of their attention.”). Otherwise, potential litigants may
become overly cautious in creating materials so as to
not risk disclosing sensitive information in future
litigation.
If we were to decline to grant this petition, we
would risk discouraging law enforcement agencies
from conducting undercover investigations (or from
keeping records of those investigations). See Coppa,
267 F.3d at 139 (concluding that mandamus was only
adequate relief where a pretrial ruling requiring “early
disclosure of the identities of potential witnesses could
undermine undercover operations and ongoing
investigation involving these witnesses”); cf. In re
Dep't of Investigation of City of N.Y., 851 F.2d 65, 6869 (2d Cir.1988) (finding an issue important enough to
warrant mandamus because “[f]ederal law
enforcement officials should have ample guidance as
to whether defendants will have access to the files of
cooperating state and local officials before entering
into joint investigations,” but denying petition because
*943 nonparty petitioner could appeal immediately if
held in contempt). Moreover, if we require the
disclosure of the Field Reports, other police officers
may be less willing to become undercover agents if
they fear that their identities may be disclosed in court
proceedings.
Accordingly, we hold that this petition presents
“legal issue[s] whose resolution will aid in the
administration of justice,” Glotzer, 374 F.3d at 187,
not only in terms of district courts applying the law,
but also in terms of police departments predicting
which of their documents will be subject to discovery
in future litigation.
***
In sum, this petition requires us to clarify several
critical aspects of our jurisprudence on the law
enforcement privilege, for deciding the petition
requires us to describe the circumstances under which
the law enforcement privilege must give way to a
party's need for discovery. This petition, therefore,
raises several “novel and significant question[s] of law
... whose resolution will aid in the administration of
justice.” Id. We therefore hold that mandamus is
“appropriate under the circumstances.” Cheney, 542
U.S. at 381, 124 S.Ct. 2576.
III. The City Has a “Clear and Indisputable”
Right to the Writ
Finally, we address whether the City has shown
that its right to the writ is “clear and indisputable.” Id.
(internal quotation marks omitted).
[14][15] Because a writ of mandamus is a “drastic
and extraordinary remedy reserved for really
extraordinary causes,” we issue the writ only in
“exceptional circumstances amounting to a judicial
usurpation of power or a clear abuse of discretion.” Id.
at 380, 124 S.Ct. 2576 (internal quotation marks
omitted) (emphasis supplied); see also Mohawk
Indus., 130 S.Ct. at 607 (noting that mandamus may
also be appropriate “when a disclosure order ... works a manifest injustice ” (emphasis adFN21
ded)). A district court “abuses” its discretion if it (1)
bases its ruling on an “erroneous view of the law,” (2)
makes a “clearly erroneous assessment of the
evidence,” or (3) renders “a decision that cannot be
located within the range of permissible decisions.”
Sims, 534 F.3d at 132 (internal quotation marks
omitted). Thus, we issue a writ of mandamus if a
district court “clear[ly] and indisputabl[y]” abuses its
discretion in one of those three ways.
FN21. The word “abuse” in the “abuse of
discretion” standard is an unfortunate-and
inaccurate-term of art. When a district court
abuses its discretion, it involves nothing as
heinous as abuse. Indeed, a socalled abuse of
discretion often involves something quite
common and unavoidable in a system of
adjudication: a “view of the law” that is
simply “erroneous.” Sims, 534 F.3d at 132. It
is, to be sure, a serious matter when a district
court reaches a “clearly erroneous
assessment of the evidence” or makes a
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ruling that “cannot be located within the
range of permissible decisions.” Id. But such
is the stuff of ordinary appellate review. An
appellate court sometimes disagrees with a
district court, even when the appellate court
applies a deferential standard of review. That
does not mean that the district court has acted
arbitrarily or committed any form of “abuse”
in the ordinary sense of the word.
For the reasons set forth below, we conclude that
the District Court “indisputabl[y]” erred in three
respects. Although the District Court correctly
determined that the law enforcement privilege applied
to the Field Reports, the District Court
“indisputabl[y]” adopted “erroneous view[s] of the
law,” Cheney, 542 U.S. at 381, 124 S.Ct. 2576; Sims,
534 F.3d at 132, when it set forth the legal standard to
determine whether the privilege was overcome*944 by
plaintiff's need for discovery: First, the District Court
failed to apply a “strong presumption against lifting
the privilege.” Dellwood Farms, 128 F.3d at 1125.
Second, the District Court failed to require that
plaintiffs show a compelling need for the Field
Reports. Third, in addition to those legal errors, the
District Court “indisputabl[y]” made a “clearly
erroneous assessment of the evidence,” Cheney, 542
U.S. at 381, 124 S.Ct. 2576; Sims, 534 F.3d at 132,
when it held that plaintiffs' need for the Field Reports
outweighed the public's interest in maintaining their
secrecy. Accordingly, we hold that the City has shown
that it has a “clear and indisputable” right to a writ of
mandamus. Id. at 381, 124 S.Ct. 2576.
A. The Law Enforcement Privilege Applies to the
Field Reports
[16] When assessing a claim of law enforcement
privilege, a district court must first determine if the
law enforcement privilege applies to the documents
at issue. We adopt the holding of the District of
Columbia Circuit that the party asserting the law
enforcement privilege bears the burden of showing
that the privilege applies to the documents in
question. In re Sealed Case, 856 F.2d 268,
271-72 (D.C.Cir.1988).
[17][18] To meet this burden, the party asserting
the law enforcement privilege must show that the
documents contain information that the law
enforcement privilege is intended to protect. Such
protected information includes information pertaining
to “law enforcement techniques and procedures,”
information that would undermine “the confidentiality
of sources,” information that would endanger “witness
and law enforcement personnel [or] the privacy of
individuals involved in an investigation,” and
information that would “otherwise ... interfere[ ] with
an investigation.” Dep't of Investigation, 856 F.2d at
484. “An investigation,” however, “need not be
ongoing for the law enforcement privilege to apply as
‘the ability of a law enforcement agency to conduct
future investigations may be seriously impaired if
certain information’ ” is revealed to the public. Nat'l
Congress for P.R. Rights ex rel. Perez v. City of N.Y.,
194 F.R.D. 88, 95 (S.D.N.Y.2000) (quoting Morrissey
v. City of N.Y., 171 F.R.D. 85, 90 (S.D.N.Y.1997)); see
also Halpern v. FBI, 181 F.3d 279, 294 (2d Cir.1999).
[19] The law enforcement privilege clearly
applies to the documents at issue 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.” Dep't of
Investigation, 856 F.2d at 484. Moreover, providing
information about the nature of the NYPD's
undercover operations will only hinder the NYPD's
ability to conduct future undercover investigations.
Additionally, even the redacted documents
contain some information that could disclose the
identity of an NYPD undercover officer. Pulling any
individual “thread” of an undercover operation may
unravel the entire “fabric” that could lead to
identifying an undercover officer. This could present a
risk to the safety and effectiveness of that officer and
would likely provide additional information about how
the NYPD infiltrates organizations, thereby impeding
future investigations.
Because we conclude (1) that the City has shown
that the Field Reports contain information regarding
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“law enforcement techniques and procedures,” id., and
the identity of undercover officers, and (2) that
disclosure of the Field Reports could undermine the
safety of law enforcement *945 personnel and would
likely undermine “the ability of a law enforcement
agency to conduct future investigations,” Morrissey,
171 F.R.D. at 90, we hold that the City has met its
burden to show that the law enforcement privilege
applies to the Field Reports.
B. Plaintiffs' Need for the Field Reports Does Not
Overcome the Strong Presumption Against
Disclosure
[20][21] We have concluded that the law
enforcement privilege applies to the Field Reports. But
the law enforcement privilege is qualified, not
absolute, In re Sealed Case, 856 F.2d at 272, so
determining the applicability of the privilege does not
complete our inquiry. Instead, as the District of
Columbia Circuit has held, “[t]he public interest in
nondisclosure must be balanced against the need of a
particular litigant for access to the privileged
information.” Id. We agree, and we adopt this sensible
balancing test as the law of our Circuit.
[22][23][24][25] Once a court has determined that
the law enforcement privilege applies, we agree with
the Seventh Circuit that “there ought to be a pretty
strong presumption against lifting the
privilege.” Dellwood Farms, 128 F.3d at 1125.
FN22
To rebut that presumption, the party seeking
disclosure
must
show (1)
that
its
suit
is
“non-frivolous and brought in good faith,” (2) that “the
information sought is [not] available through other
discovery or from other sources,” and (3) that the
information sought is “importan[t]” to the party's case.
See Friedman v. Bache Halsey Stuart Shields, Inc.,
738 F.2d 1336, 1343 (D.C.Cir.1984) (internal
quotation marks omitted). With respect to the
importance of the information sought, we hold that a “
compelling need” is required. Cf. Marriott Int'l
Resorts, 437 F.3d at 1307 (emphasis added)
(discussing the deliberative process privilege). Parties
seeking disclosure of information protected by the law
enforcement privilege must make those
three showings to overcome the strong presumption
FN23 against disclosure.
FN22. We conclude that there is a “strong
presumption against lifting the privilege”
because, as the Seventh Circuit noted, “[t]he
heart of our concern [over lifting the
privilege] is with the principle that control of
criminal investigations is the prerogative of
the executive branch, subject to judicial
intervention only to protect rights.”
Dellwood Farms, 128 F.3d at 1126.
Determining that law enforcement materials
are subject to disclosure, then, intrudes into
the province of the executive branch of
federal, state, or local governments. We do
not take making such an intrusion lightly.
FN23. We are mindful that the ultimate
burden of demonstrating the law enforcement
privilege is on the party asserting the
privilege-here, the City, see Friedman, 738
F.2d at 1341-but we nevertheless expect the
opposing party to establish its “compelling
need” for the information. See generally
Tuite v. Henry, 98 F.3d 1411, 1418
(D.C.Cir.1996) (implicitly assuming that the
“need” factor is to be established by party
seeking disclosure); Friedman, 738 F.2d at
1341 (same). This is so because the party
seeking disclosure of information is uniquely
situated to explain to a court why it wants and
needs that information.
[26] Of course overcoming the presumption does
not end the inquiry. Rather, once the presumption has
been overcome, a court must still balance “[t]he public
interest in nondisclosure ... against the need of a
particular litigant for access to the privileged
information.” In re Sealed Case, 856 F.2d at 272. In
other words, demonstrating a “compelling need” does
not automatically entitle a litigant to privileged
information. Rather, disclosure is required only if that
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compelling need outweighs the public interest in
nondisclosure.
Reports if they in any significant way contradicted or
cast doubt upon the End User Reports.
*946 [27] In this case, the parties do not dispute
that plaintiffs' suit is “non-frivolous and brought in
good faith” and that “the information sought”-among
other things, the names of the organizations that the
NYPD infiltrated-“is [not] available through other
discovery or from other sources.” Friedman, 738 F.2d
at 1343. The parties only dispute whether plaintiffs
have shown a “compelling need” for the documents.
Marriott Int'l Resorts, 437 F.3d at 1307. The City
asserts that plaintiffs have, at most, an attenuated need
for the Field Reports; plaintiffs assert that they have a
substantial need for the Field Reports.
We have reviewed the Field Reports and the
FN24
End User Reports, and we conclude that the
information in the Field Reports in no way
undermines, contradicts, or casts doubt upon the
information in the End User Reports. In fact, much of
the information in the Field Reports reinforces the
City's assertions that the public faced a substantial
threat of disruption and violence during the RNC.
Because the Field Reports do not undermine the
information previously disclosed to plaintiffs, we have
no difficulty in concluding that plaintiffs do not have
a need, much less a compelling need, for the Field
Reports.
Determining plaintiffs' need for the Field Reports
requires us to review the general contours of the
parties' putative arguments at trial. Plaintiffs intend to
challenge the City's mass arrest policy during the
RNC. In its defense, the City intends to assert that the
threats facing the RNC and the public justified the
policy. Plaintiffs, in turn, intend to argue that the
threats were insufficient to justify the mass arrest
policy. At issue, then, is the seriousness of the threat
facing the RNC and the City in the summer of 2004.
Whether the information in the Field Reports
contradicts the information in the End User Reports
determines whether plaintiffs have a compelling need
for the Field Reports. As the District Court succinctly
noted, “to the extent that the documents reveal a threat
that would have legally justified the City's challenged
policies, they will support the City's defense; to the
extent they do not, they will undercut that defense.”
MacNamara, 2009 WL 4789421, at *4. The City has
previously released to plaintiffs 600 pages of End User
Reports revealing the threat level to the City, so the
only possible use of the confidential Field Reports to
plaintiffs is to undermine or otherwise cast doubt upon
the assessment of the threat revealed in the 600 pages
already released. If the Field Reports do not contradict
the threats revealed in the End User Reports, then
plaintiffs have no need for the documents. The obvious
corollary, then, is that plaintiffs would need the Field
FN24. We reiterate that when the District
Court determined that plaintiffs need the
Field Reports, it made implicit factual
findings as to the contents of the Field
Reports and how the Field Reports could
prove useful in litigation. To determine
whether the District Court indisputably
abused its discretion, we review those factual
findings for clear error. To accomplish this,
we have carefully examined the Field
Reports and End User Reports in camera.
[28] Plaintiffs argue that, regardless of their
showing of need, the law enforcement privilege should
not protect these documents from disclosure because
the City cannot “put[ ] forth the surveillance operation
as its defense ... [and] at the same time invoke the lawenforcement privilege to block the plaintiffs from
discovering information about the operation that bears
on the validity of that defense.” Resp. 33. We agree
that, as a general matter, a *947 party cannot use
materials as a “sword” in its defense “while using
privileges attaching to [materials relied upon for that
defense] as a ‘shield.’ ” John Doe Co. v. United States,
350 F.3d 299, 302 (2d Cir.2003). But because that
general proposition is “rooted in fairness,” “we have
also cautioned against broad generalizations, stressing
that whether fairness requires disclosure ... is best
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decided on a case by case basis, and depends primarily
on the specific context in which the privilege is
asserted.” Id. (alterations and internal quotation marks
omitted). Here, the City does not intend to use the
Field Reports as a “sword,” because it has expressly
disavowed reliance on the information contained in the
Field Reports to support its claim that there was a
substantial risk of mayhem during the RNC. Pet. 27.
Moreover, even if we were to agree with plaintiffs'
claim that the City is using the Field Reports as a
“sword”-that is, selectively disclosing Reports helpful
to its defense-we would conclude, in “the specific
context in which the privilege is asserted,” John Doe
Co., 350 F.3d at 302 (internal quotation marks
omitted), that it is not unfair for the law enforcement
privilege to protect the Field Reports because the
information in the Field Reports does not contradict or
undermine the information in the End User Reports.
Accordingly, we hold that plaintiffs' need for the
Field Reports is not “compelling,” Marriott Int'l
Resorts, 437 F.3d at 1307, and, in any event, certainly
does not outweigh the public's substantial interest in
nondisclosure as a means to preserve the integrity of
the NYPD's undercover operations. We therefore hold
that plaintiffs have not overcome the strong
presumption against disclosure.
C. The District Court Erred “Indisputabl[y]”
[29] Because we have now resolved several novel
legal questions that were unsettled when the District
Court considered this case, we pause briefly to
reiterate exactly which of the District Court's errors
justify a writ of mandamus in this context.
First, although the District C...
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