Project Veritas v. N.Y. Times Co.

• Decision Date: 23 December 2021
• Docket Number: Index No. 63921/2020
• Citation: 74 Misc.3d 515,161 N.Y.S.3d 700
• Parties: PROJECT VERITAS, Plaintiff, v. The NEW YORK TIMES COMPANY, Maggie Astor, Tiffany Hsu, and John Does 1-5, Defendants.
• Court: New York Supreme Court

74 Misc.3d 515

161 N.Y.S.3d 700

PROJECT VERITAS, Plaintiff,

v.The NEW YORK TIMES COMPANY, Maggie Astor, Tiffany Hsu, and John Does 1-5, Defendants.

Index No. 63921/2020

Supreme Court, Westchester County, New York.

Decided on December 23, 2021

For Plaintiff: Robert Spolzino, Justin T. Kelton, ABRAMS, FENSTERMAN, FENSTERMAN, EISMAN, FORMATO, FERRARA, WOLF & CARONE, LLP, 81 Main Street, Suite 306 White Plains, NY 10601; Elizabeth M. Locke, P.C. (pro hac vice) Andrew C. Phillips (pro hac vice) CLARE LOCKE LLP 10 Prince Street Alexandria, VA 22314; Stephen Klein (pro hac vice) BARR & KLEIN PLLC 1629 K Street NW Ste. 300 Washington, DC 20006.

For Defendants: Joel Kurtzberg, Miles Wiley, CAHILL GORDON & REINDEL LLP, 32 Old Slip New York, New York 10005.

Charles D. Wood, J. New York State Courts Electronic Filing (NYSCEF) document numbers 170-195 were read in connection with the instant motion brought by order to show cause by Project Veritas (Seq. No. 8) pursuant to CPLR 3103, against the defendants, seeking an order directing the defendant The New York Times Company ("the Times"): (1) to remove all references to or descriptions of Project Veritas’ attorney-client privileged information published on the Times’ website on November 11, 2021; (2) to return or immediately destroy all copies of Project Veritas’ attorney-client privileged materials in the Times’ possession; (3) to refrain from further publishing Veritas’ attorney-client privileged materials; (4) to order the Times to cease further efforts to solicit and acquire Veritas’ attorney-client privileged materials; and (5) for an interim order directing the Times to sequester and refrain from further publishing any of Project Veritas’ attorney-client privileged materials.

As an initial matter, the court grants the separate motion brought by Reporters Committee for Freedom of the Press (Seq. No. 9) seeking leave to file an amici curiae brief in support of the Times, and in response to the Court's Order to Show Cause.

NOW, based upon the foregoing, the motions are decided as follows:

The background of this case is set forth more fully in this court's decision and order entered on March 18, 2021. The Times filed a Notice of Appeal of that decision on April 8, 2021. The appeal is pending.

This court (Lefkowitz, J.) also denied the Times’ application to stay discovery until a disposition of the pending appeal. The Times then sought a stay of discovery from the Appellate Division, Second Department, which was granted on October 27, 2021.

Project Veritas brought an order to show cause for the instant motion on November 18, 2021, which this court signed and entered, granting a temporary restraining order that directed the Times and its counsel to: (i) immediately refrain from further disseminating or publishing any of Project Veritas’ privileged materials in the possession of the Times; (ii) cease further efforts to solicit or acquire Project Veritas’ attorney-client privileged materials; and (iii) schedule argument on an expedited basis for November 23, 2021. On November 19, 2021, the Second Department denied a motion by the Times pursuant to CPLR 5704 that sought to vacate the Temporary Restraining Order issued by this court.

On November 23, 2021, after argument by all counsel on the relief requested by Project Veritas, this court set a briefing schedule, with Project Veritas to submit reply papers by December 1, 2021, and the Times a sur-reply by December 3, 2021. The court continued the limited injunction and protective order to permit the parties the opportunity to be heard and fully submit their papers.

On December 14, 2021, at the written request of counsel to the Times, the court amended the order to show cause to clarify that the order does not prohibit the Times from various activities related to newsgathering and reporting of Project Veritas’ attorney-client privileged documents.

This latest chapter between these parties began on November 11, 2021, at 1:07 P.M. when the Times emailed Project Veritas founder James O'Keefe and Project Veritas’ outside counsel Benjamin Barr, stating, "We are planning to publish a story based on legal memos that Mr. Barr provided to Project Veritas. The memos provide legal advice about how different PV operations could violate various laws, including the Espionage Act and Section 1001. The memos give guidance about how PV can remain in Mr. Barr's view, on the right side of these laws"¹ . The email asked for comment on the forthcoming story by 5:00 P.M. Without waiting until that stated time, at or before 3:02 P.M EST, the Times published on its website full copies of the privileged legal memoranda prepared by Mr. Barr for Project Veritas.² Then, at 5:54 P.M³ , the Times published the story entitled Project Veritas and the Line Between Journalism and Political Spying⁴ which explored Project Veritas’ controversial reporting tactics, describing and quoting from Project Veritas’ attorney-client documents. The story details how Project Veritas sought advice of counsel regarding the legality of potential news gathering tactics. The story quotes from three legal memoranda prepared by attorney Barr, providing legal advice to Project Veritas. In addition, the Times shared copies of the memoranda with a Columbia Journalism School professor and sought comment. The Times’ publication of the memoranda led Project Veritas to seek an injunction against it.

CPLR 3103

Project Veritas seeks relief pursuant to CPLR 3103(c). CPLR 3103(c) provides, in relevant part "[i]f any disclosure under this article has been improperly or irregularly obtained so that a substantial right of a party is prejudiced, the court, on motion, may make an appropriate order, including an order that the information be suppressed" ( CPLR 3103 ) (emphasis added). The Second Department has held that:

Unlimited disclosure is not mandated, however, and a court may issue a protective order pursuant to CPLR 3103 denying, limiting, conditioning or regulating the use of any disclosure device "to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts. The supervision of disclosure and the setting of reasonable terms and conditions therefor rests within the sound discretion of the trial court and, absent an improvident exercise of that discretion, its determination will not be disturbed" ( Ligoure v. City of New York , 128 A.D.3d 1027, 1028 [2d Dept. 2015] ).

Project Veritas accuses the Times of improperly obtaining its privileged materials without authorization. In addition, Project Veritas contends that the Times engaged in efforts to obtain Project Veritas’ privileged materials outside of approved discovery channels, from an unnamed and unknown individual that the Times allegedly knew was not authorized to disclose such materials. Project Veritas claims that these improper and irregular actions by the Times have substantially prejudiced its rights, and thus the court should issue a protective order mandating that the Times cease such conduct and immediately destroy or return to Project Veritas all ill-gotten, privileged materials in the Times’ possession ( CPLR 3103[c] ).

In support of its motion, Project Veritas claims that the primary nexus between the memoranda and this underlying defamation case is that they were authored by its counsel of record, Benjamin Barr. Barr's legal advice regarding several related topics goes to the heart of Veritas’ video reporting on illegal ballot harvesting by members of Rep. Ilhan Omar's staff. In addition, according to Project Veritas, the content of the attorney-client memoranda relates directly to the Times’ defenses in the defamation litigation, including on truth, fault, and damages.

Project Veritas claims that the Times’ intrusion upon its protected attorney-client relationship is an affront to the sanctity of the attorney-client privilege and the integrity of the judicial process that demands this court's intervention. According to Project Veritas, it seeks only a narrow protective order to limit the Times from "improperly or irregularly obtaining" and disseminating the privileged communications of its litigation adversary. Project Veritas argues that "a decision denying this protective order—particularly in today's internet and social media age—will permit any would-be citizen journalist, blogger, or Instagram influencer to claim the right to publish their litigation adversary's attorney-client privileged communication with impunity. That is not, and cannot, be the law."⁵

Project Veritas concludes that if this court were to accept the Times’ arguments that CPLR 3103(c) permits protective orders "only in situations involving information gathering through formal discovery methods and, in cases where a media entity is a party, only in situations where the information was acquired wrongfully or illegally, would result in a complete re-write of the text of the statute".⁶

In opposition, the Times argues that the Court should not issue a protective order pursuant to CPLR 3103 because Project Veritas’ memoranda have nothing to do with the subject matter in the underlying defamation action, since they predate the Project Veritas video and this defamation action. The Times argues that CPLR 3103(c) does not empower courts to suppress any information that a party may obtain improperly or irregularly. The Times argues that the memoranda must be relevant to the claims or defenses in this defamation action and that the November 11, 2021 article and memoranda have nothing to do with Rep. Omar, alleged voter fraud, ballot harvesting, defamation law, or the Project Veritas video. The Times says it received the memoranda through "newsgathering efforts" that were obviously outside of the litigation process because it obtained a stay of discovery and no discovery has actually taken place in this action. Further, a news organization is not prevented from reporting on newsworthy information—even...