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PROJECT VERITAS, Plaintiff, v. The NEW YORK TIMES COMPANY, Maggie Astor, Tiffany Hsu, and John Does 1-5, Defendants.
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.M 3 , the Times published the story entitled Project Veritas and the Line Between Journalism and Political Spying 4 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.
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 [9 N.Y.S.3d 678] [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 attorney-client privileged information—that is independently obtained outside of the discovery process. Relying on Seattle Times Co. v. Rhinehart, 467 U.S. 20, 34, 104 S.Ct. 2199, 81 L.Ed.2d 17 (1984), the Times argues that CPLR 3103(c) empowers the court to control only the distribution and publication of information obtained as part of an action's discovery process.
Taking these legal principles in mind, Project Veritas, as the party seeking relief under CPLR 3103(c), must first demonstrate that the subject memoranda were obtained “improperly or irregularly.” If it does so, the court's analysis under CPLR 3103(c) continues requiring a determination as to whether a substantial right of a party has been prejudiced.
Here, Project Veritas has established that it is the owner of the memoranda and the privilege, and it is not disputed that it did not waive its privilege. Since no discovery was exchanged, this is not a case where the documents were inadvertently turned over during discovery. Project Veritas has alleged that the Times knew that the individual that provided the memoranda was not authorized to disclose them. There is nothing in the record to show how the Times obtained the privileged memoranda that belong to Project Veritas. That information is solely within the Times’ knowledge and possession, and it has not offered any explanation beyond vaguely stating that the memoranda were obtained through its “newsgathering efforts.”7 However, in its Memorandum in Opposition, while attempting to distinguish the facts of the case of Rose v. Levine from this case, the Times incredibly admitted that here “no apparent bribery was used to obtain the memoranda.”8 The court finds that Project Veritas has met its burden of showing that the subject memoranda were obtained by irregular means, if not both irregular and improper means.
Turning to the second prong of the CPLR 3103 analysis, Project Veritas must also show that it has been prejudiced as a result. The court finds that the attorney-client relationship between Benjamin Barr and Project Veritas has been undermined by counsel's confidential legal advice and thought processes being in the hands of a litigation adversary, and the subject of a request for public comment. This was compounded by the Times promptly publishing the memoranda to the rest of the world and thereafter within several hours publishing a second story, describing the contents of the memoranda. More specifically, here, at 2:07 P.M., the Times’ reporters emailed James O'Keefe and Benjamin Barr that they had obtained the privileged memoranda where Barr as counsel gave advice to Project Veritas. Even though the email gave O'Keefe and Barr a deadline for comment, 5:00 P.M., at 3:02 P.M. the Times went ahead and published the entirety of the memoranda on its website ahead of the deadline it had set. At some point for reasons unknown, the Times voluntarily removed the link to the memoranda, but published an article quoting heavily from the privileged memoranda. This act by the Times to obtain and publish the confidential privileged memoranda can only be deemed to have prejudiced the rights of the plaintiff by directly compromising the confidential legal advice rendered by counsel.
Further, as Project Veritas correctly points out in its reply brief, there are a whole host of ways that the Times has gained strategic advantage in the litigation with the knowledge it gained from the memoranda, even without being able to admit them into evidence in this case. The Times’ witnesses can now craft their responses to questions at a deposition using what they have learned. The Times’ attorneys now have insight to formulate deposition topics and strategy based on the content of the memoranda. Indeed, in the November 11, 2021 article published at 5:54 P.M., the Times itself noted that the memoranda “give new insight into the workings of the group at a time when it faces potential legal peril in the diary investigation - and has signaled that its defense will rely in part on casting itself as a journalistic organization protected by the First Amendment.”9 That “insight” for the Times is unquestionably concomitant prejudice to the plaintiff.
The court has also considered the Times’ contention that this court has no power to address the Times’ publication of these memoranda, since they were obtained outside the discovery process. There is no dispute by Project Veritas that the memoranda were obtained by the Times outside of any discovery related to this action. Although the memoranda were written almost four years before the Times published them on November 11, 2021, similar themes and allegations by the Times against Project Veritas permeate the memoranda and the pleadings in this case.10 The Times’ own reporting in the subject article confirms this: “Project Veritas is suing The New York Times over a 2020 story about a video the group made alleging voter fraud in Minnesota. Most news organizations consult regularly with lawyers, but some of Project Veritas's questions for its legal team demonstrate an interest in using tactics that test the boundaries of legality and are outside of mainstream reporting techniques.”11
Further, the Times’ reliance on Seattle Times Co. v. Rinehart is misplaced here. In Seattle Times Co., the issue was not the violation of the attorney-client privilege, but rather the use and publication of financial records obtained during disclosure of the Aquarian Foundation and its “spiritual leader,” Rhinehart. Initially, the trial court denied any protective order, but after harassment and reprisal concerns were raised through affidavits of Aquarian donors and clients, the court ultimately granted an order prohibiting the publication of the donor and client names, addresses, and the amounts they contributed. In reviewing the trial court's order, the Supreme Court noted, “restraints placed on discovered, but not yet admitted, information are not a restriction on a traditionally public source of information” (467 U.S. 20, 33, 104 S.Ct. 2199, 81 L.Ed.2d 17 ). Thus, the Supreme Court made clear that the Seattle Times was not restricted from gathering information available through “traditional public source(s)” such as, interviewing Aquarian members or examining public records. This is consistent with other cases where the Supreme Court refused to block publication of private—but not privileged—information gathered outside discovery through “routine newspaper reporting techniques,”12 and where the “Appellee has not contended that the name was obtained in an improper fashion or that it was not on an official court document open to public inspection.”13 Likewise, here the Times is in no way restricted from gathering and publishing information available through traditional public sources. However, attorney-client privileged documents, by definition, are not available through a traditionally public source of information.
The attorney-client privilege is “the oldest of privileges for confidential communications” tracing its origins back nearly 450 years to 1577 England (see Upjohn Co. v. United States, 449 U.S. 383, 389, 101 S.Ct. 677, 66 L.Ed.2d 584 ; Richard S. Pike, The English Law of Legal Professional Privilege: A Guide For American Attorneys, 4 Loy. U. Chi. Int'l L. Rev. 51). The intent of the privilege is “to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice” (Upjohn Co. v. United States, 449 U.S. at 389, 101 S.Ct. 677). Open dialogue between attorney and client is “deemed essential to effective representation” (Spectrum Sys. Intl. Corp. v. Chem. Bank, 78 N.Y.2d 371, 377, 575 N.Y.S.2d 809, 581 N.E.2d 1055 ). The attorney-client privilege “exists to ensure that one seeking legal advice will be able to confide fully and freely in his [or her] attorney, secure in the knowledge that his [or her] confidences will not later be exposed to public view to his [or her] embarrassment or legal detriment” (Siegel v. Snyder, ––– N.Y.3d ––––, ––– N.Y.S.3d ––––, ––– N.E.3d ––––, 2021 WL 6057821 [2d Dept., December 22, 2021], citing Matter of Priest v. Hennessy, 51 N.Y.2d 62, 67–68, 431 N.Y.S.2d 511, 409 N.E.2d 983 ; see Ambac Assur. Corp. v. Countrywide Home Loans, Inc., 27 N.Y.3d 616, 623, 36 N.Y.S.3d 838, 57 N.E.3d 30 ). Thus, the attorney-client privilege is not solely tied to the contemplation of litigation (Spectrum Sys. Int'l Corp. v. Chem. Bank, 78 N.Y.2d at 380, 575 N.Y.S.2d 809, 581 N.E.2d 1055, citing Root v. Wright, 84 N.Y. 72, 76 ; Bacon v. Frisbie, 80 N.Y. 394, 400 ).
The protections afforded by the attorney-client privilege have not only developed through over four centuries of common law, but are found in statute (CPLR 4503), the Code of Professional Responsibility (EC 4—1) and are strongly rooted in the constitutional right to counsel (U.S. Const. 6th Amend.; NY Const., art. I, § 6). The attorney-client privilege applies to confidential communications between clients and their attorneys made “in the course of professional employment” (CPLR 4503[a]). The communication itself must be “for the purpose of facilitating the rendition of legal advice or services, in the course of a professional relationship” (Spectrum Sys. Int'l Corp. v. Chem. Bank, 78 N.Y.2d at 379, 575 N.Y.S.2d 809, 581 N.E.2d 1055, citing Rossi v. Blue Cross & Blue Shield, 73 N.Y.2d 588, 593, 542 N.Y.S.2d 508, 540 N.E.2d 703 ). The CPLR establishes “categories of protected materials, also supported by policy considerations: privileged matter, absolutely immune from discovery (CPLR 3101[b]); attorney's work product, also absolutely immune (CPLR 3101[c])” (Spectrum Sys. Intl. Corp. v. Chemical Bank, 78 N.Y.2d at 376–377, 575 N.Y.S.2d 809, 581 N.E.2d 1055).
Despite stating that this privilege is “absolute”, the Court of Appeals has recognized that the privilege may give way to strong public policy considerations. For example, “[t]he attorney-client privilege constitutes an ‘obstacle’ to the truth-finding process, the invocation of which should be cautiously observed to ensure that its application is consistent with its purpose” (see Matter of Priest v. Hennessy, 51 N.Y.2d at 68, 431 N.Y.S.2d 511, 409 N.E.2d 983; Matter of Jacqueline, F., 47 N.Y.2d 215, 219, 417 N.Y.S.2d 884, 391 N.E.2d 967 ). Even where the technical requirements of the privilege are satisfied, it may, nonetheless, yield in a proper case, where strong public policy requires disclosure (see Matter of Priest v. Hennessy, 51 N.Y.2d at 69, 431 N.Y.S.2d 511, 409 N.E.2d 983; Matter of Jacqueline, F., 47 N.Y.2d 215, 417 N.Y.S.2d 884, 391 N.E.2d 967).
The burden of establishing any right to protection is on the party asserting it; the protection claimed must be narrowly construed; and its application must be consistent with the purposes underlying the immunity (Matter of Priest v. Hennessy, 51 N.Y.2d at 69, 431 N.Y.S.2d 511, 409 N.E.2d 983). Since Project Veritas seeks the protection of the attorney-client privilege, it has the burden of proving the existence of the privilege. Here, as demonstrated in its reporters’ email and in its November 11, 2021 article, the Times has told both Project Veritas and the world that the documents were attorney-client communication.14 Further, the Times has not claimed otherwise either before this court during oral argument, or in its opposition or in its sur reply. There is no dispute that Project Veritas is the holder of the privilege, and the Times has not claimed that it was waived by Project Veritas.
Project Veritas also seeks remedies that go beyond the typical discovery process--to remove all references to descriptions of Project Veritas’ privileged attorney-client information published on the Times’ website on November 11, 2021; to return and/or immediately delete all copies of Project Veritas’ said attorney-client privileged materials; to refrain from further publishing Veritas’ attorney-client privileged materials; and to order the Times to cease further efforts to solicit and acquire Veritas’ attorney-client privileged materials.
In opposition, the Times argues that it has a constitutional right to publish the memoranda, even if they are privileged, because Project Veritas’ request to prohibit the Times from publishing newsworthy information is a classic prior restraint under the First Amendment.15 The Times claims that Project Veritas seeks to enjoin news reporting by journalists that is independent of and unrelated to this litigation and therefore not subject to the ordinary powers of the Court to regulate discovery. For the reasons set forth below, this Court does not agree.
The First Amendment of the U.S. Constitution states:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
The First Amendment was ratified within the Bill of Rights in 1791 (Michael Diederich, Jr., The President, the States and Policing American Cities, NY St. B.J., September/October 2020, at 26, 27). This prohibition against abridging freedom of the press similarly applies to the States by virtue of the due process clause of the Fourteenth Amendment (see N.Y.Const., art. I, s 8; Lewis v. Am. Fed'n of Television & Radio Artists, 34 N.Y.2d 265, 272, 357 N.Y.S.2d 419, 313 N.E.2d 735 ).
At the philosophical conception of this nation, “the 1776 Virginia Declaration of Rights, drafted by George Mason with contributions from James Madison and Patrick Henry, recognized that the freedom of the Press is one of the greatest bulwarks of liberty, and can never be restrained but by despotic Governments” (Michael Miller, Enemy of the People?, NY St. B.J., September 2018, at 5, 6; David S. Bogen, The Origins of Freedom of Speech and Press, 42 Md. L. Rev. 429, 444 ). Given their experience with King George III and a British Parliament that showed little regard for freedom of speech and of the press (and even less so in the American Colonies), the Framers of the Bill of Rights identified freedom of worship, speech, and press as important rights to spell out in the First Amendment.
Viewed as a whole, the Bill of Rights (Amendments 1-10) seeks to guarantee the rights of the governed individual. While the First Amendment clearly states that Congress shall make no law abridging freedom of speech, or of the press,” the Ninth Amendment broadly, yet succinctly states, “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”
Like the attorney-client privilege, the First Amendment is vital to our republic, but also has limits. “For even though the broad sweep of the First Amendment seems to prohibit all restraints on free expression, this Court has observed that ‘freedom of speech does not comprehend the right to speak on any subject at any time’ ” (Seattle Times Co. v. Rhinehart, 467 U.S. at 31, 104 S.Ct. 2199, citing American Communications Assn. v. Douds, 339 U.S. 382, 394–395, 70 S.Ct. 674, 94 L.Ed. 925 ). Also, “[t]he right to speak and publish does not carry with it the right to gather information” (Zemel v. Rusk, 381 U.S. 1, 17, 85 S.Ct. 1271, 14 L.Ed.2d 179 ). In this collision between attorney-client privilege and the free press, the interests on both sides are plainly rooted in the traditions and significant concerns of our society (Cox Broad. Corp. v. Cohn, 420 U.S. 469, 491, 95 S.Ct. 1029, 43 L.Ed.2d 328 ).
“Prior restraint” on speech has been defined as when a law, regulation or judicial order suppresses speech on the basis of the speech's content 16 and in advance of its actual expression 17 (United States v. Quattrone, 402 F.3d 304, 309 [2d Cir. 2005]). Prior restraints constitute “the most serious and the least tolerable infringement” on our freedoms of speech and press (United States v. Quattrone, 402 F.3d at 309). “Prior restraints whatever the form, upon the rights of free speech and publication by the media bear a heavy presumption of constitutional invalidity” (Matter of Natl. Broadcasting Co. v. Cooperman, 116 A.D.2d 287, 289–290, 501 N.Y.S.2d 405 [2d Dept. 1986]).
The Times urges that prior restraints “may be imposed only in the most exceptional cases,” and can only be issued “upon a showing on the record that such expression will immediately and irreparably create public injury” (Porco v. Lifetime Entertainment Services, LLC, 116 A.D.3d 1264, 1266, 984 N.Y.S.2d 457 [3d Dept. 2014] (internal citations and quotation marks omitted) (an order enjoining the broadcast of a movie about a convicted murderer of his parents to be an unconstitutional prior restraint). A plaintiff seeking a prior restraint of expression of views must show that the public at large will be immediately and irreparably harmed (see East Meadow Association v. Board of Education of Union Free School District No. 3, County of Nassau, 18 N.Y.2d 129, 134, 272 N.Y.S.2d 341, 219 N.E.2d 172 (1966) (prior restraint of a Vietnam War critic/folk singer's concert requires “danger of immediate and irreparable injury to the public weal”). Prior restraints upon the rights of free speech and publication “may only be overcome upon a showing of a ‘clear and present danger’ of a serious threat to the administration of justice” (Ash v. Bd. of Managers of 155 Condo., 44 A.D.3d 324, 325, 843 N.Y.S.2d 218 [1st Dept. 2007]). The government may not impose a prior restraint on freedom of expression to silence an unpopular view, absent a showing on the record that such expression will immediately and irreparably create public injury (see People ex rel. Arcara v. Cloud Books, Inc., 68 N.Y.2d 553, 558, 510 N.Y.S.2d 844, 503 N.E.2d 492 (1986).18
The list of exceptions to prior restraints is short. The Supreme Court has held that only in exceptional cases, a prior restraint may survive constitutional scrutiny. Project Veritas has a heavy burden to show justification for the imposition of such a restraint (see Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 558, 96 S.Ct. 2791, 49 L.Ed.2d 683 ). One exception might arise where the speech at issue falls into a category of expression that lies outside of the First Amendment's broad protections (see Nebraska Press Ass'n v. Stuart, 427 U.S. at 590, 96 S.Ct. 2791 [Brennan, J., concurring]). Thus, a prior restraint on the dissemination of child pornography is likely to survive First Amendment scrutiny (see United States v. Quattrone, 402 F.3d at 310). Among other matters not afforded First Amendment free speech and free press protection are: obscene speech and “fighting words” (Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498  cf. Harisiades v. Shaughnessy, 342 U.S. 580, 591–592, 72 S.Ct. 512, 96 L.Ed. 586 ) and advocating the violent overthrow of the government (Doe v. Daily News, L.P., 173 Misc. 2d 321, 322–23, 660 N.Y.S.2d 604 [Sup. Ct. N.Y. Cty. 1997]).
As the Supreme Court has held, “if a newspaper lawfully obtains truthful information about a matter of public significance then state officials may not constitutionally punish publication of the information, absent a need of the highest order” (Smith v. Daily Mail Publishing Co., 443 U.S. 97, 103, 99 S.Ct. 2667, 61 L.Ed.2d 399 ). The freedom to publish regarding matters of public concern is a bedrock principle of the First Amendment, and “state action to punish the publication of truthful information seldom can satisfy constitutional standards” (Smith v. Daily Mail Publishing Co., 443 U.S. at 102, 99 S.Ct. 2667). In Bartnicki v. Vopper, the Court held that the First Amendment outweighed any privacy interests at issue and the broadcast at issue was fully protected by the First Amendment (Bartnicki v. Vopper, 532 U.S. 514, 121 S.Ct. 1753, 149 L.Ed.2d 787 ). The recordings were provided to the broadcasters by individuals who obtained them illegally, but the court held that “a stranger's illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern” (Bartnicki v. Vopper, 532 U.S. at 535, 121 S.Ct. 1753).
Both the history and language of the First Amendment support the view that the press must be left free to publish news, whatever the source, without censorship, injunctions, or prior restraints (Nicholson v. Keyspan Corp., 14 Misc. 3d 1236(A), 2007 WL 641414 [Sup. Ct., Suffolk, Cty. 2007]). “[I]f a newspaper lawfully obtains truthful information about a matter of public significance then state officials may not constitutionally punish publication of the information, absent a need of the highest order” such as to “suppres[s] ․ information that would set in motion a nuclear holocaust” (New York Times Co. v. United States, 403 U.S. 713, 726, 91 S.Ct. 2140, 29 L.Ed.2d 822  [Brennan, J., concurring]).
As the party seeking to impose a prior restraint (to suppress the memoranda from publication and dissemination), Project Veritas bears a heavy burden of proof demonstrating justification for its imposition (Ash v. Bd. of Managers of 155 Condo., 44 A.D.3d 324, 325, 843 N.Y.S.2d 218 ).
The Times believes that this court has already burdened it with unconstitutional restriction, and that the First Amendment guarantees its ability to publish the memoranda. The Times relies upon the case of Nicholson v. Keyspan Corp, 14 Misc. 3d 1236[A], 2007 WL 641414 (Sup. Ct., Suffolk County, 2007). Acknowledging the importance of attorney-client privilege to our legal system, the court in Nicholson still refused to enjoin the news organizations from publishing privileged information. In Nicholson, the court held: “This broad constitutional prohibition on restraints on the press does not exempt from its operation comment on items covered by attorney client privilege if the document covered by attorney client privilege comes into conflict with the right of the press to publish and comment on matters of public concern as long as the press did not improperly conspire to obtain the material that was covered by the privilege” (14 Misc. 3d 1236(A) at 7-8). The court also noted, “even this privilege, important as it is, cannot be used to restrict the properly exercised, constitutionally protected freedom of the press to publish” (14 Misc. 3d 1236[A] at 9).
However, Nicholson is readily distinguishable from the case at bar. First, Justice Sgroi made a factual finding that the two media intervenors did not obtain the document at issue illegally or by improper means. In fact, in Nicholson, a party had actually leaked the document. Therefore, the court declined to issue an injunction against the two media outlets, but did issue one against the party (Nicholson v. Keyspan Corp., 14 Misc. 3d 1236[A] at 1-3). Finally, the documents were of public concern, as they related to significant environmental contamination. The court prefaced its decision by stating, “This case raises issues of public concern not only because of the effect of the plume on the health, safety and welfare of the persons directly in the path of the plume, but because the financial costs involved in remediating the plume of contaminants may be borne by the ratepayers of KeySpan if KeySpan passes those expenses through to the utility's customers and the plume itself allegedly is or soon may be polluting the Great South Bay” (Nicholson v. Keyspan Corp., 14 Misc. 3d 1236[A] at 3). Further, notably, the defendant in Nicholson, Keyspan Corp. is a quasi-governmental entity, a utility company, whose actions impact the public at large, which was in the forefront of the court's mind: “The subject matter of this litigation is of great public concern and the attorney client privilege exercised by the Defendants will be restrictively applied to encourage full and fair disclosure of information because this case will affect the health, safety and welfare of the public” (Nicholson v. Keyspan Corp., 14 Misc. 3d 1236[A] at 9).
In its sur reply, the Times also cites Rodgers v U.S. Steel Corp, for the principle that “an order enjoining plaintiff's counsel from sharing allegedly privileged materials ‘obtained otherwise than through the court's processes’ was unconstitutional prior restraint” (see Rodgers v U.S. Steel Corp, 536 F.2d 1001, 1004-1009 [3rd Cir. 1976]). However, contrary to the Times’ contentions, the holding in Rodgers is inapposite, because the facts bear little resemblance to the facts here. The subject document in Rodgers was a government document, which outlined the methodology that the Department of Justice used to calculate workers’ back pay (not a private party's attorney-client privileged memoranda). The District Court specifically stated, “This is not a lawyer's work product” (here it is), and the Third Circuit determined that absent dissemination of the document, time constraints governing the solicitation and tender could prejudice 600 employees from being able to make an informed decision about whether or not to accept the settlement offer (Rodgers v U.S. Steel Corp, 536 F.2d at 1004-1009).
The Eleventh Circuit grappled with balancing the First Amendment with the Sixth Amendment's right to counsel when CNN obtained audio recordings of former Panamanian President General Manuel Noriega and his criminal defense attorney. It noted that the Supreme Court has held, “[t]the First Amendment generally grants the press no right to information about a trial superior to that of the general public” (U.S. v. Noriega, 917 F.2d 1543, 1548 [11th Cir. 1990], citing Nixon v. Warner Communications, Inc., 435 U.S. 589, 609, 98 S.Ct. 1306, 55 L.Ed.2d 570 ). The Eleventh Circuit went on to unequivocally hold “the general public has no right of access to private communications between a defendant and his counsel” (U.S. v. Noriega, 917 F.2d at 1548). There, CNN also held information that only it possessed (the tapes), and refused to turn them over. Similarly, here only the Times knows how it obtained Project Veritas’ attorney-client communications.
Other news organizations have voiced their support for the right to publish the attorney-client privileged memoranda, through the submission of the amici curiae brief by the Reporters Committee for Freedom of the Press, which includes The Associated Press, Daily News, Gannett, Reuters, Forbes, and the Washington Post, among others.19 These organizations fear that permitting litigants to obtain orders restraining the speech of news organizations in the manner contemplated by the Order to Show Cause would harm news organizations’ ability to publish journalism of public concern.
The first issue that the court first must decide is whether the speech at issue addresses a matter of public concern (see Lewis v. Cowen, 165 F.3d 154, 161 [2d Cir. 1999]). The parameters of the public concern test are poorly defined, but there is some guidance in the Supreme Court decision in Connick v. Myers, 461 U.S. 138, 146, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983), where the Supreme Court defined a matter of public concern as one that “relat[es] to any matter of political, social, or other concern to the community”, but cautioned that “[t]o presume that all matters which transpire within a government office are of public concern would mean that virtually every remark—and certainly every criticism directed at a public official—would plant the seed of a constitutional case” (Connick, 461 U.S. at 149, 103 S.Ct. 1684). Instructive to this court's analysis of what exactly constitutes a matter of public concern is the Court of Appeals decision in Santer v. Board of Educ. of East Meadow Union Free School Dist. 23 N.Y.3d 251, 990 N.Y.S.2d 442, 13 N.E.3d 1028 (2014). Like the Pickering case it cited (Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 ), Santer involved a case where a public school board disciplined a teacher for voicing opinions about the schools. Santer applied the “Pickering Test.” The first prong of the analysis is “whether the speech which led to an employee's discipline relates to a matter of public concern” (23 N.Y.3d at 263-264, 990 N.Y.S.2d 442, 13 N.E.3d 1028). The second prong is a balance between the individual's interest in speaking and the government interest in effective operations (23 N.Y.3d at 264, 990 N.Y.S.2d 442, 13 N.E.3d 1028). Connick, Pickering, and their progeny instruct that “Speech deals with matters of public concern when it can ‘be fairly considered as relating to any matter of political, social, or other concern to the community’ or when it ‘is the subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public’ ” (Snyder v. Phelps, 562 U.S. 443, 453, 131 S.Ct. 1207, 179 L.Ed.2d 172  quoting San Diego v. Roe, 543 U.S. 77, 83-84, 125 S.Ct. 521, 160 L.Ed.2d 410 , and Connick, 461 U.S. at 146, 103 S.Ct. 1684). Whether a public employee's speech addresses a matter of public concern is a question of law to be determined in light of “the content, form, and context of a given statement, as revealed by the whole record” (Santer v. Bd. of Educ. of E. Meadow Union Free Sch. Dist., 23 N.Y.3d 251, 263-64, 990 N.Y.S.2d 442, 13 N.E.3d 1028 (2014) (internal citations omitted); (City of San Diego v. Roe, 543 U.S. 77, 83-84, 125 S.Ct. 521, 160 L.Ed.2d 410 ).
The Court of Appeals held that an article about the arrest of a public school teacher for felony possession of heroin and unlawful possession of a hypodermic needle fell “within the sphere of public concern”, due to the teacher's occupation of instructing youth, and the issue of heroin addiction (Chapadeau v. Utica Observer-Dispatch, 38 N.Y.2d 196, 379 N.Y.S.2d 61, 341 N.E.2d 569 ). Consistent with that, when a trial court enjoined a plaintiff from publishing defamatory statements and a confidential psychological evaluation of the defendant and directed the plaintiff to remove a website featuring negative comments and statements about the defendant as well as depictions of vermin, the devil, and skulls and crossbones, the Second Department has held that the injunction “constituted an impermissible prior restraint on free speech”, except as to the prohibition regarding the psychological profile, which was not a matter of public concern (Rose v. Levine, 37 A.D.3d 691, 692-693, 830 N.Y.S.2d 732 [2d Dept. 2007]).
Another example of content, form, and speech found not to implicate public concerns, was a plaintiff's speech involving her private employment situation regarding allegations of abuse of overtime and workplace bullying (see Lewis v. Cowen, 165 F.3d 154, 164 [2d Cir. 1999]). “In reaching this decision, the court should focus on the motive of the speaker and attempt to determine whether the speech was calculated to redress personal grievances or whether it had a broader public purpose” (Lewis v. Cowen, 165 F.3d at 163–64). Likewise, a plaintiff who sought to confer with her union representative about defendants’ alleged efforts to impugn her reputation as a teacher implicated plaintiff's own self-interest, not a matter of public concern—she was “not speaking out on matters of public concern but complaining about individual instances that affected her personally” (Rutherford v. Katonah-Lewisboro Sch. Dist., 670 F. Supp. 2d 230, 247 [S.D.N.Y. 2009]).
“Public concern” is also considered by the Civil Rights Law § 79-h, which offers certain protections invoking actual and qualified privilege for professional journalists and newscasters from contempt.
8) “News” shall mean written, oral, pictorial, photographic, or electronically recorded information or communication concerning local, national or worldwide events or other matters of public concern or public interest or affecting the public welfare (Civil Rights Law § 79-h).
Ironically, while all parties concede that there is no relevant caselaw that is “on all fours” with the facts herein, it is noteworthy that one U.S. District Court mused the following: “[W]hat if a confidential memorandum is stolen from an attorney's office and subsequently published in newspapers across the country? Clearly, the client should not be held to have waived the attorney-client privilege. The fact that the contents of a privileged document have become widely known is insufficient by itself to eliminate the privilege that covers the document. Although in practical terms the document has lost any semblance of confidentiality, the Court in legal terms must recognize that the client has not intentionally waived the privilege. To hold that public circulation eliminates the privilege would, in effect, give any individual who secured a privileged document the power to waive the attorney-client privilege by simply having the contents widely recounted in newspaper reports (see Smith v. Armour Pharm. Co., 838 F. Supp. 1573, 1577 [S.D. Fla. 1993]). As was the case when that court struggled with these issues, the law is still unsettled regarding the court's power to limit the use of documents obtained by means other than that court's discovery process (see Smith v. Armour Pharm. Co., 838 F. Supp. at 1578).
In light of these principles of law, the court rejects the Times’ position that Project Veritas’ attorney-client communications are a matter of public concern. Undoubtedly, every media outlet believes that anything that it publishes is a matter of public concern. The state of our nation is that roughly half the nation prioritizes interests that are vastly different than the other half. Our smart phones beep and buzz all day long with news flashes that supposedly reflect our browsing and clicking interests, and we can tune in or read the news outlet that gives us the stories and topics that we want to see. But some things are not fodder for public consideration and consumption. These memoranda, and hundreds of thousands of similar attorney-client privileged documents that are in homes, offices, and businesses in every village, town, and city in this nation are only between an attorney and a client, and it does not matter one bit who the attorney and client are. While the content of the advice is irrelevant to this court's analysis, in this case, the subject memoranda here contain typical, garden variety, basic attorney-client advice that undoubtedly is given at nearly every major media outlet in America, including between the Times and its own counsel.
A client seeking advice from its counsel simply cannot be a subject of general interest and of value and concern to the public. It is not the public's business to be privy to the legal advice that this plaintiff or any other client receives from its counsel. Like a public employee who brings a First Amendment claim alleging a prior restraint on her freedom of speech must show that the speech touches on a matter of public concern (United States v. Nat'l Treasury Employees Union, 513 U.S. 454, 465–66, 115 S.Ct. 1003, 130 L.Ed.2d 964 ), it is quintessentially personal, not public, in nature (Rutherford v. Katonah-Lewisboro Sch. Dist., 670 F. Supp.2d 230, 248 [S.D.N.Y. 2009]).
It is clear that the memoranda themselves are not a matter of public concern, and therefore, the balance tips in favor of the attorney-client privilege. That is not to say that aspects of Project Veritas and/or its journalistic methods are not of public interest. The Times is perfectly free to investigate, uncover, research, interview, photograph, record, report, publish, opine, expose or ignore whatever aspects of Project Veritas its editors in their sole discretion deem newsworthy, without utilizing Project Veritas’ attorney-client privileged memoranda.
Here, the court's protective order does not act as an impermissible prior restraint on the Times. As important as the First Amendment's protection against prior restraints is, on the present facts, the erosion of the attorney-client privilege is a far more imminent concern. “What is also at stake in the dissemination of privileged information into the public domain is the privacy of the individuals mentioned or discussed therein and the importance of full and free communication between attorney and client. ‘Hit and run’ journalism is no more protected under the First Amendment, than speeding on a crowded sidewalk is permitted under a valid driver's license” (Greenberg v. CBS Inc., 69 A.D.2d 693, 700, 419 N.Y.S.2d 988 [2d Dept. 1979]). Steadfast fidelity to, and vigilance in protecting First Amendment freedoms cannot be permitted to abrogate the fundamental protections of attorney client privilege or the basic right of privacy.
Project Veritas’ final contention is that the Times’ attorneys violated the New York Rules of Professional Conduct (“NYRPC”). The court finds that there is no basis for this in the record. The court agrees with the Times’ assertion made during oral argument, that an attorney is entitled and obligated to convey frank and open legal advice to his or her media client regarding issues such as these.20 The court notes that if the Time’ counsel's attorney-client advice were stolen or otherwise irregularly ended up in the hands of Project Veritas or any other media outlet, without the Times having waived its privilege, the communication would likewise not be a matter of public concern.21 From this record, nothing indicates that counsel for the Times strayed from ethical obligations.
Finally, with acknowledgement to Justice White, the holding today is grounded in the recognition that the First Amendment's primary aim is the full protection of speech upon issues of public concern, as well as the practical realities involved in the administration of justice and the attorney-client privilege. Although based upon the facts of the case here, the balance is struck for the latter, this is no defeat for the First Amendment. For it would indeed be a Pyrrhic victory for the great principles of free expression if the Amendment's safeguarding of the media's nearly unfettered right to broadcast issues concerning public affairs were confused with the attempt to constitutionalize the publication of the private, privileged communication that is presented here (Connick v. Myers, 461 U.S. at 154, 103 S.Ct. 1684).
The Times’ “shot across the bow”22 of their litigation adversary cries out for court intervention, to protect the integrity of the judicial process, and to remedy the “unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice” that the Times created on November 11, 2021 (CPLR 3103(a); Ligoure v. City of New York, 128 A.D.3d at 1028, 9 N.Y.S.3d 678). Having met the requirements of CPLR 3103(c), the court in its discretion must fashion an appropriate sanction that will adequately redress the violation (Lipin v. Bender, 84 N.Y.2d 562, 620 N.Y.S.2d 744, 644 N.E.2d 1300 ). The Court of Appeals noted that CPLR 3103 bestows wide discretion to the court to enter any order, including an order of dismissal, or realistic remedies that is appropriate under the circumstances. “As the drafters [of CPLR 3103] made clear, ‘[t]here is no limit but the needs of the parties on the nature of the [protective] order or the conditions of discovery’ ” (Lipin v. Bender, 84 N.Y.2d at 572–73, 620 N.Y.S.2d 744, 644 N.E.2d 1300, citing First Preliminary Report of Advisory Comm on Practice and Procedure, 1957 NY Legis Doc No. 6 [b], at 124).
Accordingly, based upon the stated reasons, it is hereby
ORDERED, that the plaintiff Project Veritas’ motion (Seq. No. 8) is granted in part to the extent set forth below; and it is further
ORDERED, that the defendant New York Times and its agents, employees, legal counsel or other persons under its control are directed to immediately turn over to the plaintiff Project Veritas’ counsel all physical copies of the subject legal memoranda prepared by Project Veritas’ counsel, Benjamin Barr, that are in its control or possession; and it is further
ORDERED, that the defendant New York Times and its agents, employees, legal counsel, or other persons under its control are directed to immediately delete/destroy copies of the legal memoranda prepared by Project Veritas’ counsel, Benjamin Barr, from any computer, cloud server or other data collecting or disseminating sources, including but not limited to, all attachments to emails and cloud server devices, and to remove such documents from the internet and any web sites or servers over which they have control; and it is further
ORDERED, that the defendant New York Times’ counsel and the defendants herein are directed to use best efforts to retrieve copies of the legal memoranda prepared by Project Veritas’ counsel, Benjamin Barr, provided to third parties, including but not limited to, Bill Grueskin; and it is further
ORDERED, that the defendant New York Times’ counsel and the defendants herein are directed not to use the legal memoranda prepared by Project Veritas’ counsel, Benjamin Barr, or information obtained from those documents in this action for any purposes whatsoever; and it is further
ORDERED, that the defendant New York Times is directed to file with the court within ten (10) days of service with notice of entry of this order an affidavit/affirmation confirming its compliance hereto, setting forth in detail all documents that have been destroyed or removed from data collecting or disseminating sources, including emails and attachments thereto, the date that the documents and copies of documents were destroyed, and the method used to destroy the documents and copies of documents; and it is further
ORDERED, that, if applicable, all counsel are directed to file with the court, an affirmation setting forth any documents filed on NYSCEF containing excerpts of the subject attorney-client memoranda, and submit copies of the documents with proposed redactions, for consideration by the court for entry of an appropriate sealing order; and it is further
ORDERED, that the attorney-client memoranda that are the subject of this order shall not be shown, transmitted, or disseminated in any manner to any persons absent written order of this Court; and it is further
ORDERED, that the motion for leave to file brief of Amici Curiae in support of the New York Times (Motion Seq. No. 9) is granted; and it is further
ORDERED, that in the event the defendant New York Times fails to comply as directed herein, plaintiff Project Veritas shall upload to the NYSCEF file, no later than January 28, 2022, upon notice to defendants, an affidavit/affirmation of noncompliance and plaintiff is granted leave to seek any relief related thereto, including preclusion, striking of pleadings, and costs and/or sanctions; and it is further
ORDERED, that all other relief requested by any person or party not specifically addressed herein is denied.
The foregoing constitutes the Decision and Order of the Court.
1. Email from Goldman to O'Keefe & Barr, dated 11/11/21 (NYSCEF Doc. No. 166).
2. These times were alleged set forth in Ms. Locke's letter to Joel Kurtzberg and David McCraw, the Times’ counsels, dated November 12, 2021, and have not been disputed (NYSCEF Doc. No. 167).
3. Project Veritas claims that the time of the email is Central Standard Time, which would be 2:07 Eastern Standard Time (see Affirmation of Elizabeth M. Locke, NYSCEF Doc. No. 165).
4. Adam Goldman & Mark Mazetti, Project Veritas and the Line Between Journalism and Political Spying, THE NEW YORK TIMES, https://www.nytimes.com/2021/11/11/us/politics/project-veritasjournalism-political-spying.html (last accessed Nov. 22, 2021) (NYSCEF Doc. No. 174).
5. Reply Memorandum of Project Veritas, at 16 (NYSCEF Doc. No. 192).
6. Reply Memorandum of Project Veritas, at 16 (NYSCEF Doc. No. 192).
7. NYT Memorandum in Opposition, at 5 (NYSCEF Doc. No. 185).
8. See Defendant's Memorandum in Opposition, at FN 9 (NYSCEF Doc. No. 185).
9. Adam Goldman & Mark Mazetti, Project Veritas and the Line Between Journalism and Political Spying, THE NEW YORK TIMES, https://www.nytimes.com/2021/11/11/us/politics/project-veritasjournalism-political-spying.html (last accessed Nov. 22, 2021) (NYSCEF Doc. No. 174).
10. See Summons and Complaint, NYSCEF Doc. No. 1, ¶¶ 11-21; Memorandum of Law in Support of Motion to Dismiss, (NYSCEF Doc. No. 14 point IV); Affirmation in Support of Motion to Dismiss (NYSCEF Doc. No. 15, para 19-71).
11. The sentences follow each other, with a solicitation ad by The Times inserted between them. The story consists of 58 sentences separated into 41 paragraphs, eschewing traditional paragraph structure. Adam Goldman & Mark Mazetti, Project Veritas and the Line Between Journalism and Political Spying, THE NEW YORK TIMES, https://www.nytimes.com/2021/11/11/us/politics/project-veritasjournalism-political-spying.html (last accessed Nov. 22, 2021) (NYSCEF Doc. No. 174).
12. See Smith v. Daily Mail Pub. Co., 443 U.S. 97, 103, 99 S.Ct. 2667, 61 L.Ed.2d 399 (1979)
13. See Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 496, 95 S.Ct. 1029, 43 L.Ed.2d 328 (1975)
14. See Email from Goldman to O'Keefe & Barr, dated 11/11/21 (NYSCEF Doc. No. 166) and Adam Goldman & Mark Mazetti, Project Veritas and the Line Between Journalism and Political Spying, THE NEW YORK TIMES, https://www.nytimes.com/2021/11/11/us/politics/project-veritasjournalism-political-spying.html (last accessed Nov. 22, 2021) (NYSCEF Doc. No. 174).
15. The brief of amici curiae argues similar points on this issue.
16. The vast majority of cases cited by the Times deal with restrictions based on content. The court has viewed the memoranda for the purposes of establishing whether they were attorney-client communications, and to determine whether they bear any nexus to this cause of action. Otherwise, their content is irrelevant to the holdings herein.
17. In this case, the Times published the memoranda on its web site, then voluntarily took them down prior to the instant motions being filed.
18. Memorandum of Law in Opposition, (NYSCEF Doc. No. 185 at 1, 7)
19. Affirmation of Katie Townsend (NYSCEF Doc No. 187) and Amici Brief of Reporters Committee for Freedom of the Press (NYSCEF Doc. No. 188).
20. November 23, 2021 oral argument Tr., at p. 45
21. Based on the scenario of non-governmental entities. Certainly, actions of public entities are more likely to be of public concern.
22. See Letter from Plaintiff's counsel to Defendant's counsel (NYSCEF Doc. No. 167).
Charles D. Wood, J.
Response sent, thank you
Docket No: Index No. 63921/2020
Decided: December 23, 2021
Court: Supreme Court, Westchester County, New York.
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