New York Personal Injury Attorneys BlogCIVIL RIGHTS ACTIONS-DISCOVERY, PRIVILEGE LOGS
To prevail in a civil rights action under 42 USC §1983, plaintiff must establish that defendants deprived decedent of a right secured by the constitution or laws of the United States and that such deprivation was committed by person(s) acting under color of state law (see, Spell v. McDaniel, 591 F.Supp. 1090 [1984]). Officially promulgated ordinances, regulations and departmental directives give rise to municipal liability under section 1983 if such policies and decisions lead to a deprivation of constitutional rights (Id.). Municipalities are liable under section 1983 for de facto policies or practices which engender constitutional deprivation; informal actions, if they reflect general policy, custom, practice or pattern of official conduct which even tacitly encourage conduct depriving individuals of their constitutional rights, satisfies section 1983 standards (Id.).
Legal Standard For Discovery
Federal, and not State law, governs questions of discoverability, confidentiality and privilege in federal civil rights actions (see, King v. Conde, 121 F.R.D. 180 [EDNY 1988]; Fed. R. Civ. P. 26[b][1]). Under Rule 26 (b)(1) of the Federal Rules of Civil Procedure, any information that is not privileged is discoverable if it is relevant to the action or reasonably calculated to lead to the discovery of admissible evidence.
A privilege log in which a defendant simply asserts the privileges of law enforcement, deliberative process, attorney-client and work-product, contarvenes well established law concerning the proper procedure for, and burden of, demonstrating the applicability of the privileges, both generally and specifically. Accordingly, this type of privilege log is insufficient on its face and the indiscriminate claim of privilege may in itself be sufficient reason to deny it (see, e.g., Torres v. Kuzniasz, 936 F.Supp. 1201 [DCNJ 1996]). See also; National Congress for Puerto Rican Rights Case (194 F.R.D. 88 [SDNY 2000].
It is black-letter law in the Second Circuit that the burden is on the party claiming the protection of a privilege to establish those facts that are essential elements of the privileged relationship; this burden requires an evidentiary showing by competent evidence (see, Thompson v. Lynbrook Police Dept., 172 F.R.D. 23 [EDNY 1997]; Thompson v. Keane, 95 Civ. 2442 [SDNY 1996]; Svaigsen v. City of New York, 203 A.D.2d 32, 609 N.Y.S.2d 894 [1st Dept. 1994]; King v. Conde, supra). The party’s showing must detail the reasons for non-disclosure with sufficient particularity; a bald assertion of privilege is insufficient (Id.; see, Svaigsen v. City of New York, supra; King v. Conde, supra; Cornell Univ. v. City of New York Police Dept., 153 A.D.2d 515, 544 N.Y.S.2d 356 [1st Dept. 1989]). Otherwise, the court has no choice but to order disclosure (Thompson v. Lynbrook Police Dept., supra).
