Judge Orders New York Times to Defend Publishing James O'Keefe Legal Memos

Joel B. PollakNovember 18, 2021

New York Judge Charles D. Wood of the Supreme Court of Westchester County ordered the New York Times on Thursday to defend its publication last week of an article about legal memoranda addressed to Project Veritas and founder James O’Keefe.

!!! Judge in Project Veritas/NYT case orders @nytimes to defend its online publication of the privileged legal memos of our client, which occurred AFTER the FBI seized James O’Keefe’s phones and which contain extensive privileged communications with dozens of attorneys: pic.twitter.com/6ZKdH2BsLv

— Harmeet K. Dhillon (@pnjaban) November 18, 2021

Counsel handling that case and who filed the papers leading to this order are Clare Locke and Abrams Fensterman. As noted, Project Veritas, like other news outlets, has lots of lawyers and lots of litigation.

— Harmeet K. Dhillon (@pnjaban) November 18, 2021

The decision stems from a case filed last year in which O’Keefe is suing the Times for defamation. But it is related to the recent FBI raid on O’Keefe’s home in New York, because the Times only published its article after the raid.

As Breitbart News reported earlier this month, the FBI raid was ostensibly to look for information pertaining to the diary of President Joe Biden’s daughter, Ashley Biden, which Project Veritas says it obtained legally, never published, and turned over to law enforcement.

A week later, as Breitbart News noted, the Times published an article about the legal advice given to O’Keefe and Project Veritas by their lawyers. The paper quoted directly from the memos.

As Breitbart News noted:

Technically, attorney-client privilege applies to communications from the client to the lawyer, not the other way around, though it could apply in this case if the lawyers cited communications from the client in their memos. Moreover, the “work product” doctrine prevents opposing counsel from obtaining materials an attorney has prepared in advising a client.

The Times notes that “Project Veritas is suing The New York Times over a 2020 story about a video the group made alleging voter fraud in Minnesota.” That raises questions about whether the Times article violated work product doctrine.

Separately, a federal judge last week ordered the Department of Justice to stop extracting data from O’Keefe’s smartphone, seized in the raid, until a hearing could be held on whether the court should appoint a “special master” to review materials to ensure that investigators were not given anything that infringed on attorney-client privilege.

It is possible that the Times obtained legal memos relevant to the defamation case. It is not clear whether those memos came from law enforcement or other sources, though one of the Times journalists who wrote the article, Michael S. Schmidt, was part of the paper’s Pulitzer Prize-winning coverage of the “Russia collusion” story, which relied on law enforcement sources but was exposed as a hoax.

The Times must comply with the court order by Tuesday, Nov. 23.

Joel B. Pollak is Senior Editor-at-Large at Breitbart News and the host of Breitbart News Sunday on Sirius XM Patriot on Sunday evenings from 7 p.m. to 10 p.m. ET (4 p.m. to 7 p.m. PT). He is the author of the recent e-book, Neither Free nor Fair: The 2020 U.S. Presidential Election. His recent book, RED NOVEMBER, tells the story of the 2020 Democratic presidential primary from a conservative perspective. He is a winner of the 2018 Robert Novak Journalism Alumni Fellowship. Follow him on Twitter at @joelpollak.