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Judge Finds NY Times Improperly Obtained Project Veritas Attorney-Client Communications

Judge Finds NY Times Improperly Obtained Project Veritas Attorney-Client Communications

The NY Times obtained and published privileged documents of a party (Project Veritas) who was litigating against the NY Times. The Judge Ordered the NY Times to return and not to use the privileged documents, and to expunge the documents from its systems.

This was supposed to be a quiet evening. I’m covering the website so the rest of the team can enjoy Christmas Eve and Day. Fortunately, they did bank some posts for me.

But there is no rest for the weary. There is breaking Christmas Eve news in the defamation lawsuit by James O’Keefe’s Project Veritas against the NY Times.

As we previously reported, the NY Times obtained and published attorney-client communications between PV and its legal counsel. It is not known how The Times obtained the documents, with speculation that the FBI leaked information after the FBI raided James O’Keefe’s home and seized his and other PV employee phones and electronic devices.

Regardless of sourcing, the NY Times obtained and published privileged documents of a party who was litigating against the NY Times.

PV moved in court for relief, and late today the Court granted sweeping relief. (h/t Right Scoop)

Here is the decision (highlighting not mine, was on document posted on the ExposeNYT website). The court first set forth the procedural history:

New York State Courts Electronic Filing (“NYSCEF”) document numbers 170-195 were read in connection w ith 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’ attorneyclient privileged materials in the Times’ possession; (3) to refrain from further publishing Veritas’ attorney-client privil eged 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….

Project Veritas brought an order to show cause for the instant motion on November 18, 2021, which this cou11 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 (ii i) schedule argument on an expedited basis for November 23, 2021. On November I 9, 2021, the Second Department denied a motion by the Times pursuant to CPLR 5704 that sought to vacate the Temporary Restraining Order issued by thi s court….

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.

Then the court turned to the specific incident:

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.

Then to the court rulings:

Project Yeritas accuses the Times of improperly obtaining its privileged mater ials 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….

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 liti gation adversary….

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….

That’s where I have to stop copying and pasting text from the decision, because the decision document uploaded uses page images rather than standard pdf. starting where the yellow highlighting begins for the remainder of the document. So I’ll have to refer to the key pages as posted on Twitter posted by Harmeet Dhillon:

(If I can manage to get a ‘clean’ copy of the decision, I’ll quote more of it).

Of course, the NY Times is playing victim, with the Editorial Board quickly spitting out a Opinion piece (probably prepared in advance), A Dangerous Court Order Against The New York Times.

Needless to say, there will be more and more appeals. But for today, James O’Keefe and Project Veritas notched a victory.

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Comments

The acts of Biden, that madman Garland and the FBI are a lot more heinous;

“Think about how crazy that is. Project Veritas sues the Times. The FBI then raids Project Veritas for an “unrelated” matter. Then memos protected by attorney-client privilege about that lawsuit are leaked to the Times, which then publishes some of them in an attempt to harm Project Veritas further. That’s enough corruption to make many third-world countries blush. And the Times apparently thought they could get away with it. That’s how brazen the leftwing media has become.

“Still, I’d opine that the biggest scandal here remains the DOJ/FBI leaking the documents in the first place. That is truly the epitome of the “deep state.” There is no justification for the FBI to be raiding the homes of Project Veritas journalists over Ashley Biden’s diary. That was clearly an attempt to try to protect Biden from the salacious accusations in it and nothing more. Yet, instead of stopping there, they then collected documents that had nothing to do with Ashley Biden’s diary and sent them over to their allies at the Times.

“As I’ve said before, the FBI needs to be burned to the ground. Its credibility can’t be saved at this point.”
https://redstate.com/bonchie/2021/12/24/ny-supreme-court-delivers-a-beat-down-to-the-new-york-times-in-project-veritas-case-n496621

    It didn’t start with Biden and Garland. The FBI was corrupt ab initio.

    After 9/11 we were following the terrorists through their use of credit cards. The NYT betrayed the country by reporting this secret and we lost a valuable tool in the war on terror. We should never forget or forgive the NYT – agents of Al Qeada.

      Danny in reply to ConradCA. | December 25, 2021 at 3:04 pm

      A broken clock is right twice a day. Bush going hyper fascist and building a national police state (the same national police state that very successfully framed Donald Trump and ruined his administration by the way) and tracking credit cards of people because of their faith was a horrible thing.

      Bush benefitted he fear mongered us into wars for the purpose of changing thousands of years of third world culture into California.

      Sorry but what part of the Constitution exists and must not be tread on didn’t neocons (who are now Democrats by the way) understand?

      NYT is an evil propaganda institution. Even a broken clock is right twice a day however.

      I say it is time to dump Bush, including his Islam hatred, war mongering, police state policies, and his drunken sailor spending on armaments.

Hello Professor Jacobson, so many years of you covering the late shift, Thank you.

If I read this correctly, the NYT went on the wrong side of the law to obtain “privileged information” discussing how to stay on the correct side of the law.

Sigh, such a modern world.

I wish you and yours, and this site, all the best.

Colonel Travis | December 24, 2021 at 8:07 pm

Good to hear.
Merry Christmas, prof. and all the Legal Insurrectionists.

Pasadena Peabody | December 24, 2021 at 8:41 pm

Merry Christmas Professor Jacobson. Many thanks to you and your staff for a good year’s work at Legalinsurrection.

Garland is a disgrace.

    Ben Kent in reply to puhiawa. | December 25, 2021 at 6:44 pm

    GARLAND MUST RESIGN

    The NY Times must be ordered to pay $ millions in punitive damages. A mere slap on the wrist will just embolden them.

Blaise MacLean | December 24, 2021 at 9:05 pm

I have a point regarding the unethical conduct of the NY Times lawyers.

It is my understanding that newspapers will not publish stories such as this without first reviewing it with in-house (usually… maybe sometimes external) counsel. Thus NY State qualified lawyers must have looked at this story and the supporting documentation. Due diligence means that even if “journalists” will refuse to disclose sources in court, they must have told the lawyers and editors where this came from.

It is therefore abundantly clear that the NY Times lawyers knew the privileged documents were illegally obtained and, more significantly, were fully aware they were trafficking in lawyer-client privileged documents. And apparently they signed off on that.

That is, I believe, a serious violation of the NY State Bar Code of Ethics. I cannot imagine that there is a Bar anywhere which would not deem this unethical conduct.

So, apart from all the legal proceedings, the lawyers for Project Veritas should immediately file an Ethics Complaint with the NY State Bar over the use of privileged legal communications by lawyers of the party against whom Project Veritas is actually litigating. The Times’ lawyers ought to be dragged up before that Committee and not only be forced to justify their unjustifiable conduct, but to disclose the sources by which the Times illegally obtained this information. A journalist may refuse to disclose such information but I believe a lawyer trying to preserve their ticket to practice might spill everything.

Thank you for covering this big story. It is an important story even if the corporate/ mainstream media try to suppress it.

    You don’t actually think there is going to be any action against the Times’ lawyers, do you?

      Valerie in reply to irv. | December 24, 2021 at 11:18 pm

      Yes. This is a huge ethics violation.

        Bruce Hayden in reply to Valerie. | December 25, 2021 at 9:39 am

        But so was submitting knowingly falsified documents to the FISC, knowing that that would deprive at least Carter Page (and ultimately many more) of their 4th and 5th Amdt rights. but Clinesmith just got reinstated by the DC bar.

        This couldn’t have been an ethics violation because progressives don’t violate ethics rules, likely through the implied exception in such rules for progressive advocacy.

        Ben Kent in reply to Valerie. | December 25, 2021 at 6:41 pm

        Disbar them.

        henrybowman in reply to Valerie. | December 27, 2021 at 2:34 pm

        Still awaiting the bar action against Fatman and Flufferboy that we were all “promised.”

      Blaise MacLean in reply to irv. | December 25, 2021 at 1:44 am

      I think there ought to be but the real point would be to find out the sources. There is more than one way to skin a cat as the old saying goes (though I don’t get why anyone would want to skin a cat) and if you can’t get the sources from the “journalists” maybe try to find a weaker link…a NY lawyer who feels their license (and thus their self-image of prestige) might be in jeopardy. And the way to put that pressure on is through the Ethics process.

      TX-rifraph in reply to irv. | December 25, 2021 at 7:34 am

      Kevin Clinesmith, a former FBI lawyer found guilty of committing perjury during the Trump-Russia probe has been restored to “good standing” by the DC bar.

      Distraction not action should be expected.

    healthguyfsu in reply to Blaise MacLean. | December 25, 2021 at 2:26 am

    The lawyers can claim acp as their client, the nyt employees, are the ones that obtained the documents.

    They need to be disbarred either way and the nyt needs to face more severe penalties than just a case, desist, and dont do that again.

Solid.

Note- time to behave as the Soviet dissidents once did. If you think the monopoly of violence and force will not be turned against you, look no further than this story.

ThePrimordialOrderedPair | December 25, 2021 at 4:18 am

The Judge Ordered the NY Times to return and not to use the privileged documents, and to expunge the documents from its systems.

That’s it? Really?

What a joke.

    I agree with ThePrimordialOrderedPair. This is a very modest victory for Project Veritas. This is what would be expected if an unintended disclosure of privileged material was made during actual discovery (to remedy an honest mistake). At the very best, the privileged material was unlawfully (that is, the defendant obtained the privileged material from the Federal Government) obtained and published for the purpose of damaging the plaintiff to the benefit of the defendant. At worst, the Times originated or willingly participated in an unlawful action of the FBI and the Department of Justice in raiding a journalist’s property to discover information that can be used by the Times as a defendant in a pending defamation case. Don’t forget, within the hour following the FBI raid, the Times contacted O’Keefe for his comment on the raid. So, think of this in the following terms: Defamation defendant desires planning and legal advice of defamation plaintiff’s counsel, and works with the FBI and the DOJ to seize property (phones and computers) of defamation plaintiff. A real victory would have been an ongoing sanction by the court that hampers the ability of the Times to defend itself in the defamation case.

    “That’s it? Really?
    What a joke.”

    Court: You are ordered to put the cap back on the toothpaste tube.

Merry Christmas from Central Texas… high 88

I’m dreaming of a white Christmas…

Peace on earth and goodwill towards all living things

Merry, Merry Christmas to one and all

Wishing everyone a most Merry Christmas from Free Florida!

May God bless each of you.

God bless America.

freespeechfanatic | December 25, 2021 at 8:43 am

So the NKVD and Pravda collude to undermine the samizdat’s effort to reveal truth and some remaining outpost of justice calls them out for it and Pravda labels it a “dangerous” ruling. What a shock.

The NYT is comparing this to the Pentagon Papers. There are some obvious differences, comparisons not being duplicates. I’d be interested in a dispassionate (insofar as is realistic) analysis of that point.

This decision if it stands on appeal us a landmark case against a legacy media defendant Please post the index Number on the NYS Electronic filing system so that we can read the entire decision

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