Boston College has filed its reply brief in its appeal in the Belfast Project case. As I read the brief, BC is conceding the issue of evidentiary privilege in light of the First Circuit’s decision in McIntyre & Moloney’s appeal. In other words, BC is no longer claiming that there is a privilege to refuse to produce documents that are clearly responsive to the subpoenas. Instead, BC argues that under the Cusumano decision, in the academic research context, the judge had to apply heightened scrutiny to determine whether documents are sufficiently relevant to require production. This is a good point—Judge Young’s decision on the responsiveness of some of the materials, other than the Dolours Price and Brendan Hughes interviews, was questionable. We covered that issue back in January.
When taken with the apparent futility of a petition for en banc review, this seems to mean that there is no little or no chance that the First Circuit will protect the Price and Hughes materials from disclosure, or that it will protect from disclosure any other of the interviews that BC is willing to concede are directly responsive to the subpoenas.