Project Veritas and the New York Times battle over press freedom and attorney-client confidentiality

There are, I think, only two possibilities with respect to the appellate arguments on behalf of The New York Times in its current legal bout with Project Veritas.  Counsel for the Times either are convinced that appellate judges do not read the opinions under appeal or are convinced that judges will be intimidated by the identification "counsel for The New York Times."

There can be no other explanation for the legal mindset of counsel for The Times, as reported in The New York Times by Michael Grynbaum in the December 29 print edition of the paper — and in the Business section, to boot.  According to lawyers for The Times, as related by Grynbaum, a New York state appellate justice was advised that the paper will be harmed, irreparably, by the order of Justice Charles D. Wood that the paper destroy or turn over legal memoranda, protected by the attorney-client relationship, that The Times obtained by "irregular" means, as determined by Justice Wood.  As it happens, the "irreparable harm" argument used by The Times represents a blatant steal from Project Veritas to explain the impact on Project Veritas, by The Times, in trashing the attorney-client relationship, by  publishing legal memoranda drafted by counsel for Project Veritas, by its counsel.

Justice Wood noted in his opinion that the irregularly obtained legal memoranda predated the defamation action brought by Project Veritas against The Times — and are not relevant to the instant libel action brought by Project Veritas against the paper.  Granting the requested order by Project Veritas that The Times return hard copies of the memoranda and destroy electronic copies, Justice Wood found that the paper had improperly obtained the copies and "prejudiced the rights of the Plaintiff  [Project Veritas] by directly compromising the confidential legal advice rendered by counsel."  In effect, Justice Wood had determined that the egregious conduct by The Times against Project Veritas did not warrant tossing aside the protection afforded this plaintiff by the  attorney-client relationship. 

Jonathan Stempel, covering the Project Veritas lawsuit for Reuters, December 28, reported that Justice Wood's return and destroy order "alarmed First Amendment advocates."  Mr. Stempel neglected to disclose that his employer, Reuters, joined the legion of media outlets reflexively supporting The Times as amici curiae.  He also cited the concern expressed in The Times attack editorial against Project Veritas and Justice Wood.  The editorial, falsely, I submit, asserted that Justice Wood's ruling would encourage "frivolous" lawsuits against The Times.  Mr. Stempel might have informed Reuters's readers that courts in the United States do not look with favor upon "frivolous" lawsuits and, indeed, could very well impose penalties upon those members of the bar who would be so unprofessional foolish as to bring frivolous actions into courtrooms — to assail media defendants, or for other purposes.

Project Veritas was quoted by Justice Wood as calling the action by The Times, in publishing its confidential legal memoranda, "an affront to the sanctity of the attorney-client privilege and the integrity of the judicial process that demands this court's attention." Civil liberties advocates should reflect on the damage to the attorney-client relationship caused by media outlets that use their self-asserted First Amendment rights as battering ram against aggrieved plaintiffs.

Not insignificantly, Justice Wood, citing judicial precedent, explained that attorney-client privilege, in part, was intended to encourage full and frank discussions between attorney and client.  He pointed out that the privilege "is not solely tied to the contemplation of litigation," an argument raised by the lawyers for the paper. 

Another observation in the opinion by Justice Wood merits consideration — by "First Amendment advocates" as well as by appellate jurists.  Justice Wood noted:  "There is nothing in the record to show how The Times obtained the privileged memoranda." 

How did reporters from The New York Times "obtain" those legal memoranda from attorney Benjamin Barr to his client Project Veritas?  It is not enough for The Times to explain that the memoranda were acquired through "newsgathering efforts."  I tremble that the following is not an unthinkable thought: that the "newsgathering" process The New York Times tolerates to obtain confidential, purely private information could come from an FBI "smash and grab" at the home of a conservative activist.  Law professor Jonathan Turley sarcastically asks if the FBI will raid the New York Times as it did Project Veritas over stolen documents.

It is not unlikely that the current aspect of the litigation between Project Veritas and The New York Times will be appealed to the highest levels of the Judiciary.  May the Almighty grant that reviewing judges have the wisdom to perceive that a media outlet hostile to dissenting views is not a "First Amendment advocate" by shouting "free press, free press!" to advance the cause of totalitarianism.  Any and all judges who review the media campaign to intrude upon the attorney-client relationship should uphold the ruling of Justice Wood — uphold democracy, really — with one possible exception.  Justice Wood denied the request by Project Veritas for sanctions against counsel for The Times.  That denial should be revisited.

The December 23, 2021 order of New York State Supreme Court justice Charles D. Wood, sought by Project Veritas against The New York Times Co. et al., Index No. 63921/2020, should stand.

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