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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