Two days ago Judge Charles D. Wood in Westchester County, New York issued a ruling in this case.
Project Veritas (PV) had sued the New York Times (NYT) to prevent them from publishing and retaining memos they had obtained. Project Veritas maintains that because the memos contained communications between them and their lawyers, they were legally protected as confidential information via attorney-client privilege.
The judge agreed and has now upheld his earlier order preventing NYT from publishing and also directed NYT to turn over any physical copies and destroy any electronic copies of these memos.
NYT has stated:
Project Veritas described things as:
The judge wrote in his ruling:
NYT said they would immediately appeal, so this isn’t over yet.
Is the Judge correct? Or is The New York Times going to prevail?
How did the NYT obtain the memos? If through the course of litigation, like through inadvertent disclosure of privileged material during discovery, then the judge’s ruling might make sense. Otherwise, I’m not sure how it does because I, as a private citizen, don’t have to give two squats about your attorney-client privilege or the confidentiality of your internal communications if you have failed to keep it yourself (that is, if you or your agents have let information get out).
Or such is my sense of things. But it’d help to know if, for Instance, there is some actual statute involved, such as might protect trade secrets.
It shouldn’t make any difference but Justice Charles D. Wood, who just put out this decision, is an elected Republican. I have no idea whether that is a slap at his integrity. Nevertheless, we are living in a time of a politicized court system.
The memos at issue have nothing to do with that suit and did not come to The Times through the discovery process. Still, Project Veritas is arguing that their publication must be prohibited because the memos contain confidential information that is relevant to the group’s litigation strategy.
I am wondering about this: According to the reporting I’ve seen, the judge ordered NYT to immediately return the documents. Is that to be taken literally? NYT says they will appeal. Do they get to hang onto the docs until that is done? Or do they have to turn over the docs at once even before the appeal? If they really have to turn over the docs immediately, what if they refuse?
By the way, this is in NY state courts, which have strange names compared to other states and the federal system. Trial level courts = Supreme Court. Intermediate level appellate court = Supreme Court, Appellate Division. Highest court in the state = the Court of Appeals.
They will have to ask for a stay, I think. First from the trial court, then, when that request is, I expect, denied, request an emergency stay from the Appellate Division, which should be granted. If they refuse and there is no stay, they can be held in contempt, including held in jail or fined (or both) until they comply. It wouldn’t be the first time a journalist went to jail over a journalistic principle like this. I expect the ruling to be overturned. The only complicating factor is that the parties involved are engaged in litigation, but I’m not seeing how that would change the basic principles involved, as long as it’s accurate that it has nothing to do with the litigation.
It can’t be introduced as evidence if it’s privileged, but that’s not what NYT is trying to do.
I think part of the issue is that these are documents related to PV’s lawsuit against the NYT. So the Times isn’t some disinterested third-party here. From snowboarder_bo’s link:
Project Veritas, a conservative organization that seeks to uncover wrongdoing by mainstream media and liberal groups, is suing the Times for libel in connection with its reporting about the group’s founder, James O’Keefe. At issue in this instance are documents obtained by the Times that were prepared by attorney Benjamin Barr for Project Veritas in connection with the case.
My question is how they got these documents regarding a lawsuit that they are a party of and in fact, I wonder if the ruling is telling the Times, “You can’t have confidential documents from opposing council.”
Because the NYT can only operate through individuals. The Court can determine which official in the NYT has authority to hand over the documents, and direct that person to do so, in their capacity as an official of the NYT. If they don’t comply with the order, they could be liable for contempt.
The NYT is the defendent in the lawsuit, so I don’t know if you can describe anything as “appears to be false” based entirely on their claims.
I believe the judge has seen the memos, and if in fact he determined that they were related to the lawsuit, then that would carry more weight. Factually, but even moreso legally, since if he made that factual determination it might be hard to overturn on appeal.
The opinion appears to be available here (although it references other opinions as well).
I’ve skimmed it; it’s a little weird. On the one hand, you appear to have a litigant that is using “improper” methods to obtain material outside the usual discovery process which the court believe could prejudice the other party. This seems like something that would generally support a discovery sanction (especially when you’re dealing with privileged material).
On the other hand, the documents don’t directly relate to the pending litigation and the NY Times is a media company and it’s a legitimate matter of public interest.
It seems like an unusual posture (I think it depends a lot of the fact that there is pending litigation between the two groups, which seems like it would rare); I think that the Times probably has the better of it.
Mightn’t it depend on who, precisely, at the NYT has the documents in question? It seems to me that even if the documents are both newsworthy and relevant for pending litigation, it’d depend on whether the documents are held by the news team or the legal team.
There’s also the fact that this could have a chilling effect on all news reporting. A newspaper is about to publish something negative about you? Sue them, and claim that the material they’re about to publish is privileged. What’s different about this case, compared to any other case of someone wanting to muzzle a news outlet?
How could you ever verify that all electronic copies have been destroyed? And suppose the Times eventually prevails in the suit and then “discover” that someone has a copy of the electronic version on a memory stick that he had forgotten he had made and now they use the material again. As for the paper copies, can they hand them over to the judge (or, better, a neutral third party) with the proviso that they be returned if the Times prevails.
That’s assuming that it can be shown that it was the Times that gave it to them. If I was wandering by their offices and picked up a zip drive and took it over to WaPo, then I may have done something wrong, but would NYT or WaPo?
More my question would be whether a different media outlet would be able to publish these documents without worrying about an injunction or anything.