N.Y. Appellate Court Stays, Pending Appeal, Injunction Against N.Y. Times in Project Veritas Case

Yesterday’s orders in Project Veritas v. N.Y. Times Co.:

ORDERED to have the branch of appellants [New York Times’] motion which is to stay enforcement of the order pending hearing and determination of the appeal is granted, and enforcement of the order is stayed pending hearing and determination of the appeal on condition that the appeal is perfected on or before March 11, 2022; and it is further, …

ORDERED that the branch of the appellant’s motion which is to vacate the order is denied ….

(Thanks to the Media Law Resource Center MediaLawDaily for the pointer.) Below is my December 27, 2012 post about the underlying order.

Project Veritas is a video production company that specializes on videos using a conservative approach based upon hidden-camera interviews. It sued the New York Times almost a year ago for libel. This case is still being considered, due to the Times’ claim that Project Veritas videos were misleading in substance. One could argue that newsgathering with hidden cameras or microphones inherently deceives itself, but that argument could also be made for mainstream media outlets.

Last month, Project Veritas published an article in the Times about “working with lawyers to gauge its deceptive report practices before running into federal laws”. The article was based on communications between attorney and client that the Times somehow obtained. The communications were posted online by the Times, but they were removed. Although we don’t know the source of the Times communications, a Nov. 22 filing stated that no apparent bribery was involved or any other inappropriate behavior was used in order to get the memoranda.

New York state trial court Justice Charles Wood, who is presiding over the case, concluded this publication of a litigation adversary’s attorney-client-privileged information was improper, and issued preliminary orders barring the Times from further using the information (I oversimplify the procedure here slightly). He issued an opinion on Friday confirming that Project Veritas had to (1) hand over all the physical copies of attorney-client memoranda created by Benjamin Barr (the Project’s lawyer), (2) destroy other copies and (3) use “best efforts to recover copies” of memoranda provided to “third parties”, including Bill Grueskin [a professor at the Columbia Journalism School],” (4) “not … use the legal memoranda … or information obtained from those documents … for any purposes whatsoever,” and (5) not disseminate the memoranda.

Now the Supreme Court has never decided whether media outlets (or any other speakers) may be barred from publishing improperly leaked attorney-client-privileged information. It has been most prevalent in cases involving criminal defendants. The leaks could jeopardize their Sixth Amendment right of fair trial. State Record Co. v. State In such cases, the S.C. 1998, upholding temporary restraining orders. U.S. v. Manuel Noriega (11th Cir. (19th Cir. Post-Newsweek Stations Orlando, Inc. (Fla. Ct. App. 2007); rejecting injunctions in cases where civil lawsuits or criminal prosecutions were pending. The Due Process Clause, which is the basis of a fair trial, can also be used to address civil cases.

If there are other types of leaks, however, the Supreme Court doesn’t recognize the power of the Supreme Court to stop the publication of any leaked or improperly released information. This is at least as long as the publisher didn’t participate in the original illegal theft, interception or leak. The Pentagon Papers 1971), The Court notoriously rejected an injunction against publication of government secrets leaked by the public (though the Court did not decide whether criminal penalties could apply to such publications). In Florida Star v. B.J.F. 1989: The Court decided that no newspaper could be civilly liable for publishing details of victims of rape who had been wrongly released from the police. In addition, Bartnicki v. Vopper (2001), the Court held that a radio talk show host couldn’t be held civilly liable for “intentional disclosure of an illegally intercepted cellular telephone conversation about a public issue,” at least where the host “did not participate in the interception, but … did know—or at least had reason to know—that the interception was unlawful.” This is my brief analysis of Justice Wood’s decision.

[1.]It was clear that the matter was not of “public concern”.

[T]he court rejects the Times’ position that Project Veritas’ attorney-client communications are a matter of public concern…. [S]Many things aren’t for the public to consider and consume. This memorandum, along with hundreds of thousands of other attorney-client confidential documents, is between an attorney, a client and it doesn’t really matter who they are. Although the court is not concerned with the content, this court found that the memoranda in question contained typical attorney-client advice. This advice can be given by almost every major media outlet, even between its counsel and the Times.

The public cannot have access to information about a client who seeks advice from counsel. 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…. [I]t is quintessentially personal, not public, in nature….

Evidently, memoranda by themselves are not of public concern. Therefore, attorney-client privilege prevails. This does not mean Project Veritas, or any of its journalistic techniques are of no public interest. The Times has the right to research, investigate, interview and photograph Project Veritas, as well as its journalistic methods, but they must not use Project Veritas attorney-client privilege memoranda.

The court’s order of protection does not serve as an impermissible prior restriction 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…. The privacy of those mentioned and discussed in the privileged information is at risk. It is important to ensure that attorney-client communication is open and unrestricted. [“]Hitch and run journalism does not have the same protections as speeding on a sidewalk. (Greenberg v CBS Inc., 69 AD2d 700, 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…. [I]It would be indeed a Pyrrhic victory in support of the great principles and freedom of expression, if Amendment’s protection of media’s almost unfettered rights to broadcast public issues was confused with attempts to constitutionalize publication of private, confidential communication.

It seemed that I couldn’t reconcile this view. Bartnicki v. Vopper:

  1. The communication in both instances was about a public matter when it came down to its contents. (In BartnickiThis was the plan of union leaders to commit a criminal offense; it is now that investigative journalists have plans for how to organize their behaviour to prevent them from committing any crime.
  2. The communication between the parties was understood generally in both instances.
  3. It is generally “not the public’s business to be privy to” cell phone conversations between people, whatever the subject of the conversation, just as the public generally isn’t privy to attorney-client-privileged communications.

But, Bartnicki The court ruled that the speech was not subject to any liability in the future.

[T]The conversation’s subject was of concern to the public. If the statements about the labor negotiations had been made in a public arena—during a bargaining session, for example—they would have been newsworthy. If a third party inadvertently heard Bartnicki make the same statements about Kane, when they thought they were all alone, this would be also true.

The same logic seems to apply to speech in Project Veritas.

[2.]Additionally, the Court cited Times as “litigation antagonist” for the Project.

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 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…. [T]There are many different ways in which the Times, using its memoranda knowledge in litigation, has gained strategic advantages in court. The memoranda information has allowed the Times witnesses to craft deposition responses using this knowledge. The Times’ lawyers now have the information they need to create deposition topics and strategies based on what the memoranda contain. Indeed, in … [its article about the privileged memoranda], 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.” That “insight” for the Times is unquestionably concomitant prejudice to the plaintiff….

The memoranda in the case were created almost four years prior to the Times publishing them. However, they contain similar themes and accusations by Project Veritas that are repeated throughout the memoranda. The subject article’s own reporting by the Times confirms that Project Veritas has sued The New York Times for a 2020 story it published about a video they made claiming voter fraud in Minnesota. Although most news organisations consult lawyers frequently, Project Veritas has some questions for its legal staff that show an interest in using techniques outside the norm of traditional reporting.  …

The Times “shot across their bow” to their litigation opponent cries for court intervention to preserve the integrity of the judiciary process and remedy “unreasonableannoyances, expense, embarrassment or disadvantage” created by the Times on November 11, 2021 [the date it published the attorney-client privileged information]….

Even if it had an unfair advantage because the Times was able to access the adversary’s attorney client privileged materials and the Times published those documents, I believe this would only justify the Times being sued. A default judgment against Project Veritas, the Times’ litigation antagonist, would be the harshest form of such litigation sanctions. This is not enough to justify injuncting the Times from being published.

[3.] Some have also argued that the underlying New York statute, N.Y. Civil Practice Law & Rules § 3103, doesn’t authorize an injunction such as Justice Wood’s, and addresses only protective orders limited to documents released through coercive discovery (on the theory that, when the legal system requires a party to disclose documents to an adversary, it can attach conditions to that disclosure).

But it appears that New York courts have read § 3103 more broadly than that; see Lipin v. Bender (N.Y. 1994), where the plaintiff had taken some of defendant’s attorney-client privileged papers that were left unattended at a conference room table—the court concluded that this justified an order under 3103(c), though the plaintiff’s obtaining of the records had nothing to do with the use of state coercive power and the mandatory disclosure process. Court’s reasoning was focused on the intrusion upon privileged communications rather than misuse of discovery devices. “There is no doubt that plaintiff knowingly, deliberately, intruded into plainly personal communications between defendants, their attorney and themselves, and by keeping and hand-copying these documents, she preserved the information she had gleaned for maximum benefit to herself (and maximum disavantage to defendants). So I think the strongest argument against Justice Wood’s order is the First Amendment argument, not the internal limitations of § 3103.

We’ll wait to see what happens in appeal. A previous emergency appeal against the initial restraining or was dismissed by one judge. But, such an order shouldn’t prevent the New York appellate courts examining the matter again, now that Justice Wood has issued a full decision.