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BORCHERS v. COMMERCIAL UNION ASSUR. CO.

January 27, 1995

ROBERT BORCHERS and THWAITES INN, INC., Plaintiffs, against COMMERCIAL UNION ASSURANCE CO., LA REUNION FRANCAISE SOCIETE ANONYME D'ASSURANCES ET DE REASSURANCES, THE YORKSHIRE INSURANCE COMPANY LIMITED, BISHOPGATE INSURANCE LIMITED, NORTHERN ASSURANCE CO. LTD., EXCESS INSURANCE COMPANY, LTD., LONDON AND HULL MARITIME INSURANCE COMPANY LIMITED, THE OCEAN MARINE INSURANCE COMPANY LIMITED, PRUDENTIAL ASSURANCE COMPANY, LTD., ENGLISH & AMERICAN INSURANCE CO. LTD., THE THREADNEEDLE INSURANCE CO. LTD., GENERALI, ASSICURAZIONI GENERALI, S.P.A., SIRIUS (U.K.) INSURANCE PLC, SPHERE DRADE INSURANCE PLC., and PHOENIX ASSURANCE PUBLIC LIMITED CO., Defendants.


The opinion of the court was delivered by: DENISE COTE

 DENISE COTE, District Judge:

 BACKGROUND

 This is an action in which the plaintiffs seek to recover the proceeds of an insurance policy, issued by defendants, following a fire at Thwaites Inn, located in City Island, Bronx, New York, on February 17, 1992. The defendant insurers have refused to pay on the ground, inter alia, that the fire was deliberately set, or caused to be set, by the Inn's owner, Borchers.

 Fire Marshall Lynn, employed by the F.D.N.Y.'s Bureau of Fire Investigation ("B.F.I."), is the principal investigator of this fire. Prior to mid-March 1992, he shared information about his investigation with the defendants, apparently including his view that Borchers was responsible for the fire. After mid-March 1992, he ceased sharing such information with the defendants. Fire Marshall Lynn was subpoenaed by plaintiffs for an examination before trial and production of the investigative reports relating to this fire, by subpoenas dated June 24, 1993, and September 20, 1993. After several adjournments, Fire Marshall Lynn appeared on September 27, 1994, to be examined and produce documents. Either at the appearance or subsequent to it, Fire Marshall Lynn produced some of the documentation requested by plaintiffs, including most of the investigative file created prior to mid-March 1992, but asserted that other information and documents requested by plaintiffs were protected by a qualified law enforcement privilege due to the existence of an open investigation into the fire. *fn2"

 Fire Marshall Lynn has provided two logs of the documents he asserts are privileged. The first such log is dated October 21, 1994, and includes: 1) personal notebook entries of Fire Marshall Lynn dated February 25 and May 14, 1992; 2) official reports generated between August 24, 1993 and May 15, 1994; 3) an audiotape created on August 24, 1993; 4) six subpoenas issued by the Bureau of Fire Investigation between March 24 and September 27, 1993; and 5) various pages in Case Logs, created between March of 1992 and October of 1994. The second log is dated January 23, 1995, and lists allegedly privileged documents generated after October 21, 1995, including: 1) official reports generated on October 21, 1994 and December 6, 1994; and 2) miscellaneous case log pages, dated October 21, 1994, through December 6, 1994.

 IN CAMERA INSPECTION

 Plaintiffs requested that the Court examine the documents in camera, and counsel for the F.D.N.Y. did not object. The United States Supreme Court has approved the practice of requiring parties who seek to avoid disclosure of documents to make the documents available for in camera inspection. U.S. v. Zolin, 491 U.S. 554, 569, 105 L. Ed. 2d 469, 109 S. Ct. 2619 (1989). Although the decision of whether to engage in in camera review rests in the sound discretion of the district court, Estate of Fisher v. C.I.R., 905 F.2d 645, 651 (2d Cir. 1990), in camera review is particularly encouraged in cases invoking governmental claims of privilege. See, e.g., Kerr v. United States District Court, 426 U.S. 394, 406, 48 L. Ed. 2d 725, 96 S. Ct. 2119 (1976) (suggesting in camera review is a "highly appropriate and useful means of dealing with claims of governmental privilege"); United States v. Nixon, 418 U.S. 683, 706, 41 L. Ed. 2d 1039, 94 S. Ct. 3090 (1974) (in camera review of documents sought by special prosecutor appropriate in light of claim of presidential privilege). The Court has granted the request for an in camera review, and this Opinion is based on that inspection.

 THE LAW ENFORCEMENT PRIVILEGE

 The Second Circuit Court of Appeals has recognized a law enforcement privilege, the purpose of which 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.

 In re Dept. of Investigation of City of New York, 856 F.2d 481, 484 (2d Cir. 1988) (citations omitted). Because the privilege is "qualified," however, it must be balanced against a litigant's substantial need for information. U.S. v. Davis, 131 F.R.D. 391, 395 (S.D.N.Y. 1990); see also Raphael v. Aetna Cas. and Sur. Co., 744 F. Supp. 71 (S.D.N.Y. 1990).

 Plaintiffs recognize the existence of a qualified law enforcement privilege but argue that the F.D.N.Y. investigation must be over since it has not yet resulted in an arrest for a 1992 fire that the F.D.N.Y. promptly concluded was the result of arson. The November 16, 1994 affidavit of Fire Marshall Lynn indicates that the investigation of the Thwaites Inn fire is "an open investigation", that a witness was interviewed as recently as October 21, 1994, and that, in his opinion, based on his twelve years of work with the F.D.N.Y., it is not unusual for an arson investigation to remain open for two or three years after the fire. The in camera review of the withheld documents confirms that the investigation is ongoing. Even if ...


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