files). Where a federal civil action involves both federal
and pendant state claims, and the asserted privilege is
relevant to both claims, federal courts also appear to hold
that privilege is governed by federal law. See Wm. T.
Thompson Co. v. General Nutrician Corp., Inc., 671 F.2d
100, 103 (3d Cir. 1982); von Bulow by Auersperg v. von
Bulow, 811 F.2d 136, 141 (2d Cir.), cert. denied 481 U.S.
1015 (1987). But, as Kelly recognized, this is not to say
that state privilege laws must be ignored. State law often
protects important privacy interests, King v. Conde, 121
F.R.D. 180, 187 (E.D.N.Y. 1988), and a strong policy
of comity between state and federal authority impels
federal courts to recognize state privilege when possible
without compromising federal substantive and proce-
dural policy. Lora v. Board of Educ., 74 F.R.D. 565, 576
(E.D.N.Y. 1977); see also In re Hampers, 651 F.2d 19, 22
(1st Cir. 1981).
The same policy is respected by the United States
Supreme Court. Douglas Oil Co. of Cal. v. Petrol Stops
Northwest, 441 U.S. 211, 222-223 (1979). The public
interest in keeping criminal investigation files is
heightened if the criminal investigation is still in progress
or is the subject of an imminent criminal prosecution.
Flynn v. Church of Scientology Int’l, 116 F.R.D. 1, 5
(D.Mass. 1986); Jabraa v. Kelly, 75 F.R.D. 475, 493
(E.D.Mich. 1977); Shuttleworth v. City of Camden, 258
N.J. Super. 573, 585 (App. Div.), certif. denied 133 N.J.
429 (1992). However, that public interest cannot be
disregarded simply because the principal investigation
has apparently been concluded. Black v. Sheraton Corp.
of Am., 564 F.2d 531, 546 (D.C.Cir. 1977). It has been
repeatedly recognized that if investigatory files were
made public after the completion of enforcement
proceedings, future investigations would be seriously
impaired because “‘[f]ew persons would respond
candidly to investigators if they feared that their remarks
would become public record after the proceedings,’” and
the investigative techniques would be disclosed to the
public. Id. (quoting Aspin v. Department of Defense, 491
F.2d 24, 30 (D.C. Cir. 1973)).
Lower federal courts also generally recognize a “law
enforcement” privilege, which is a qualified privilege
established to prevent the disclosure of information that
would be contrary to the public interest in effective law
enforcement. Tuite v. Henry, 181 F.R.D. 175, 185
(D.D.C. 1998), aff’d, 203 F.3d 53 (D.C. Cir. 1999)
(“By protecting relationships and values outside the
courtroom, privileges demonstrate that even though the
search for truth is of critical importance in the litigation
process, it is not necessarily paramount to all other
interests of society.”); Torres v. Kuzniasz, 936 F. Supp.
1201, 1209 (D. N.J. 1996). The law enforcement
privilege is one of a group of privileges, also including the
government privilege, deliberative process privilege, and
executive privilege, whose function is to protect
“documents whose disclosure would seriously hamper
the functions of government.” Siegfried v. City of Easton,
146 F.R.D. 98, 101-02 (E.D.Pa. 1992); Clark v.
Township of Falls, 124 F.R.D. 91, 92 (E.D.Pa. 1988);
Frankenhauser v. Rizzo, 59 F.R.D. 339, 342 (E.D.Pa.
1973). These privileges are designed “to avoid the evils
of ‘government in a fishbowl.’” Jupiter Painting
Contracting Co. v. United States, 87 F.R.D. 593, 597
(E.D.Pa. 1980).Application of the law enforcement privilege requires
a court to weigh the interest of the government ensuring
the secrecy of the documents in question against the need
of the adverse party to obtain the discovery. United States
v. O’Neill, 619 F.2d 222, 227 (3d Cir. 1980); Torres,
936 F. Supp. at 1209; G-69 v. Degnan, 130 F.R.D. 326,
332 (D.N.J. 1990). In balancing whether the law
enforcement privilege should be upheld with respect to
internal police department files in civil rights lawsuits
filed under 42 U.S.C. § 1983, the leading federal case,
Frankenhauser v. Rizzo, recognized the need to balance
“the public interest in the confidentiality of
governmental information against the need of a litigant to
obtain data, not otherwise available to him, with which
to pursue a non-frivolous cause of action.” 59 F.R.D. at- In that oft-cited case, Judge Becker recited ten
factors to be considered in making that determination:
(1) the degree to which disclosure will thwart
governmental processes by discouraging citizens from
providing the government with information; (2) the
impact on those who have given information of having
their identities disclosed; (3) the extent to which
disclosure will chill governmental self-evaluation and
consequent improvement; (4) whether the material
sought constitutes factual data or evaluative summary;
(5) whether the party seeking discovery is or may be a
defendant in a criminal proceeding either pending or
reasonably likely to follow; (6) whether the police
investigation has been completed; (7) whether any
internal disciplinary proceedings have resulted or may
result from the investigation; (8) whether the plaintiff’s
suit has been brought in good faith and is not frivolous;
(9) whether the information sought is available through
other discovery or from other sources; (10) the
importance of the material sought to the plaintiff’s case.
Frankenhauser, 59 F.R.D. at 344.
The law enforcement privilege preserves the integrity
of law enforcement procedures and confidential sources,