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Judge Orders The New York Times to Return Legal Memos to Project Veritas

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Judge Orders The New York Times to Return Legal Memos to Project Veritas
The New York Times building is seen in New York on Aug. 3, 2020. (Shannon Stapleton/Reuters)
Mimi Nguyen Ly
12/25/2021
Updated:
12/28/2021

A New York judge has ordered The New York Times to return confidential legal memos that it obtained between investigative journalism organization Project Veritas and the group’s attorney.

The New York Times had obtained the memos that were prepared by Project Veritas attorney Benjamin Barr. It remains unclear how they were obtained. The media outlet then published the documents online. It later took them down, but an article published on Nov. 11 describing the memos was still available on the paper’s website.

The memos, in part, contained advice from Barr as to how Project Veritas could avoid running into legal problems with its methods of reporting, which largely involve reporters going undercover. The organization sued the paper and accused it of having obtained the privileged materials without authorization.

“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,” New York State Supreme Court Justice Charles D. Wood in Westchester County said in his Dec. 23 ruling (pdf).
Wood upheld his earlier order in November that blocked the newspaper from further publishing the memos. He also ordered The New York Times to return the memos to Project Veritas, including physical copies. The paper must also destroy “all copies of the memos it has, including removing them ‘from the internet,’” and retrieve all copies of the memos that it had provided to third parties.

Furthermore, The New York Times must confirm its compliance within 10 days. Wood told Project Veritas to notify the court by the end of January 2022 if the newspaper doesn’t comply and warned The New York Times of potential sanctions in such a case.

Wood also ordered the paper to not use the memos or any information obtained from them, in a separate lawsuit that Project Veritas filed against The New York Times in late October 2020. The defamation suit was filed after The New York Times had published an article in September 2020 calling Project Veritas’ reporting “deceptive.”
A.G. Sulzberger, publisher of The New York Times, said the newspaper will appeal Wood’s ruling and will seek to have the order stayed until such an appeal can be heard.

Attorney-Client Privilege

The New York Times in November ran a report about how the FBI raided the home of Project Veritas founder James O'Keefe, as well as the homes of other current and former Project Veritas staffers.
O’Keefe said in a statement at the time that the Justice Department appeared to be investigating the alleged theft of a diary of Ashley Biden, the daughter of President Joe Biden.
“Project Veritas never threatened or engaged in any illegal conduct,” O’Keefe said.

In its report, The New York Times quoted the memos, which included attorney-client communications, leading Project Veritas to accuse it of having violated attorney-client privilege.

Wood, in his Dec. 23 order, said the memos weren’t a matter of public concern and that it’s “clear” that the balance “tips in favor of the attorney-client privilege.”

“The court rejects [The New York 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 judge wrote. “But some things are not fodder for public consideration and consumption. These memoranda ... are only between an attorney and a client, and it does not matter one bit who the attorney and client are.

“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. That is not to say that aspects of Project Veritas and/or its journalistic methods are not of public interest.”

Wood noted that The New York 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.”

Sulzberger characterized Wood’s ruling as an attack on press freedoms and said it’s alarming for “anyone concerned about the dangers of government overreach into what the public can and cannot know.” He decried the ruling as “unconstitutional” and a “prior restraint,”—a term that refers to government action prohibiting speech or other expression before they’ve taken place.

Sulzberger also said the ruling “could present obvious risks to exposing sources should it be allowed to stand.”

Wood addressed the matters in his ruling.

“Here, the court’s protective order does not act as an impermissible prior restraint on the Times,” he said. “As important as the First Amendment’s protection against prior restraint is, on the present facts, the erosion of the attorney-client privilege is a far more imminent concern.”

He quoted an extract from a prior ruling in 1979, Greenberg vs. CBS Inc. to illustrate his point.

“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,” the 1979 ruling reads. “‘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.”

Wood said his ruling 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.”

Project Veritas attorney Elizabeth Locke praised the ruling, calling it “a victory for the First Amendment for all journalists“ while noting that it ”affirms the sanctity of the attorney-client relationship.”

“The New York Times has long forgotten the meaning of the journalism it claims to espouse and has instead become a vehicle for the prosecution of a partisan political agenda,” Locke said in a Dec. 24 statement. “Today’s ruling affirms that the New York Times’ behavior was irregular and outside the boundaries of law.”

Reuters and The Associated Press contributed to this report.