SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION — SECOND DEPARTMENT

PROJECT VERITAS,
Plaintiff,
Index No. 63921/2020 (Supreme Court of
v. the State of New York, County of
Westchester)
THE NEW YORK TIMES COMPANY, MAGGIE
ASTOR, TIFFANY HSU, and JOHN DOES 1-5, __

Defendants.

AFFIDAVIT OF ELIZABETH M. LOCKE, P.C. IN RESPONSE TO DEFENDANT THE

NEW YORK TIMES COMPANY’S CPLR § 5704(a) APPLICATION TO VACATE
ORDER TO SHOW CAUSE

COMMONWEALTH OF VIRGINIA )
) ss.
CITY OF ALEXANDRIA )

ELIZABETH M. LOCKE, P.C., being duly sworn, hereby deposes and says:

1. I am an attorney, admitted to practice in the Commonwealth of Virginia, and partner

of the firm Clare Locke LLP. I have been admitted pro hac vice in the above-captioned action as

counsel for Plaintiff Project Veritas.

2. I make this Affidavit upon personal knowledge and in response to The New York

Times Company’s November 19, 2021 Application to Vacate the Order to Show Cause entered by

the Supreme Court in the underlying action on November 18, 2021 (NYSCEF # 170).

3. For the reasons set forth below, the interim relief mandated by the Supreme Court’s
Order was a proper and appropriate exercise of the Supreme Court’s authority under N.Y. CPLR
3103(c), there is no basis to modify or vacate the order in advance of the November 23, 2021
hearing on the Order to Show Cause, and the Supreme Court hearing should proceed as scheduled.

1
 4. The Times’ application attempts to frame the issues in terms of lofty First
Amendment principles and to portray the Times as a victim of “an unconstitutional prior restraint.”
But in reality, the Supreme Court’s Order to Show Cause is hardly novel or extraordinary—
instead, it is an appropriate exercise of the Supreme Court’s authority over the conduct of litigants
and the discovery process.
5. As set forth in Project Veritas’ memorandum in support of its Motion for an Order
to Show Cause and affidavit in support thereof (NYSCEF # 164-168), Project Veritas and The

Times are adverse parties in an ongoing defamation action before the Supreme Court for

Westchester County. Discovery in this action is currently stayed, at The Times’ request, by an
October 27, 2021 Decision & Order on Motion of this Court while The Times appeals’ the
Supreme Court’s denial of its motion to dismiss.
6. On November 11, 2021, The Times published on its website a story referencing,
describing, and quoting from legal memoranda written for Project Veritas by its counsel of record
in the underlying defamation action—memoranda that are, without dispute, protected by the
attorney-client privilege. (Affidavit of Elizabeth M. Locke, P.C. in Supp. of Pl.’s Motion Pursuant
to CPLR § 3103 for an Order to Show Cause for the Protection of Attorney-Client Privileged
Information Improperly Obtained and Published by The New York Times (hereinafter, “Locke
Aff.”), ¶ 5, Ex. 1 (Nov. 11, 2021) (NYSCEF # 105).) Separately, The Times also published full,
unredacted versions of the privileged memoranda on its website at a different URL. (Locke Aff.
¶ 4.)
7. Those memoranda are clearly related to the dispute in the underlying defamation
action, which centers on The Times’ description of a groundbreaking piece of Project Veritas
journalism as “deceptive.” (See Compl. ¶¶ 1, 12-13 (NYSEF # 1).) Indeed, The Times’ November
11, 2021 story characterizes them as memoranda that “show how [Project Veritas] worked with
lawyers to gauge how far its deceptive reporting practices could go before running afoul of federal
laws,” and the story itself explicitly references the ongoing litigation between Project Veritas and

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The Times.1 And The Times’ defense in the underlying defamation litigation similarly rests on
claims that Project Veritas has a history of engaging in “deceptive” conduct that supposedly has
run afoul of federal laws.2
8. On November 17, 2021, Project Veritas filed its motion for an order to show cause.
(Affirmation of Joel Kurtzberg in Supp. of Def. The New York Times Co.’s CPLR § 5704(a)
Application to Vacate Order to Show Cause (“Kurtzberg Aff.”) (Nov. 19, 2021) at Exs. B-D.)
9. Before Project Veritas filed the motion, it provided notice of its intent to do so to

The New York Times’ counsel via email. (Email from E. Locke to J. Kurtzberg & D. McCraw

(Nov. 17, 2021), annexed hereto as Exhibit 1.) The New York Times submitted a letter to Justice
Wood arguing in opposition to the motion at 9:49 AM (E-service email from
[email protected] to counsel, annexed hereto as Exhibit 2; Ltr. from J. Kurtzberg to Hon.
Charles D. Wood, annexed hereto as Exhibit 3.)
10. The Supreme Court entered the Order to Show Cause at 9:56 AM, after the Times
submitted its letter in opposition (E-service email from [email protected], annexed hereto
as Exhibit 4.)
11. In these circumstances, far from being an unconstitutional “prior restraint,” the
Supreme Court’s Order to Show Cause temporarily instructing The Times to cease dissemination
of an opposing party’s attorney-client privileged materials is a proper and routine exercise of the
Supreme Court’s authority under N.Y. CPLR § 3103(c) to issue any “appropriate order” where a
litigant has “improperly or irregularly” obtained a disclosure in a manner that prejudices “the
substantial right of a party.” Indeed, New York courts regularly issue orders that prohibit or limit
a litigant from utilizing or disseminating materials that are protected by privilege, confidentiality,

1Adam Goldman and Mark Mazzetti, “Project Veritas and the Line Between Journalism and
Political Spying,” THE NEW YORK TIMES (Nov. 11, 2021),
https://www.nytimes.com/2021/11/11/us/politics/project-veritas-journalism-political-
spying.html.
2See Mem. of Law in Supp. of Defs.’ Anti-Slapp Mot. to Dismiss Pursuant to CPLR §§
3211(a)(1), (a)(7), and (g) (Dec. 18, 2020) at 4-6 (NYSCEF # 14).

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trade secret law, or other limitation on disclosure. See, e.g., OMNI Health & Fitness Complex of
Pelham, Inc. v. P/A Academia Pelham Manor, LLC, 939 N.Y.S.2d 742 (Table), 2011 WL 4985197
(Sup. Ct. N.Y. Sept. 28, 2011) (suppressing attorney-client privileged materials an attorney
improperly obtained from a former employee of the adverse party and directing counsel to cease
further efforts to obtain such materials); In re Estate of Weinberg, 509 N.Y.S.2d 240, 241 (N.Y.
Surr. Ct. 1986) (directing party to return adverse party’s attorney-client privilege materials
obtained from a third party and mandating that further efforts to obtain protected information

cease); Data Track Account Services, Inc. v. Lee, 291 A.D.2d 827 (4th Dep’t 2002) (affirming

Supreme Court’s permanent injunction prohibiting former employee from disclosing “confidences
and secrets” he obtained while employed by plaintiff); Doe v. Roe, 42 A.D.2d 559 (1st Dep’t 1973)
(affirming preliminary injunction enjoining defendant psychotherapist from publishing in a
forthcoming book confidential conversations with plaintiff patient because the conversations were
confidential and infringed on plaintiff’s right to privacy) aff’d, 33 N.Y.2d 902 (1973); Rose v.
Levine, 37 A.D.3d 691 (2d Dep’t 2007) (affirming supreme court order requiring plaintiff to
remove a confidential psychological evaluation from plaintiff’s website because publication
violated plaintiff’s right to privacy); KLM Royal Dutch Airlines, N.V. v. DeWit, 415 N.Y.S.2d 190,
191-92 (Sup. Ct., N.Y. Cty., 1979) (enjoining defendants from disclosing plaintiff’s trade secrets).
12. At bottom, the interim relief granted in the Supreme Court’s Order to Show Cause
is entirely appropriate and routine, whereas it is the position of The Times that is remarkable and
novel. The Times essentially posits that it should be given special treatment, that it is immune
from the Supreme Court’s statutory and inherent authority over the conduct of parties litigating
before it, and that The Times should be free to prejudice the sacrosanct attorney-client privilege
rights of an opposing party by not only obtaining its adversary’s privileged materials but also
publishing them to the entire world. That cannot be and is not the law.
13. Most problematic, to date, The Times has refused to explain to Project Veritas, the
Supreme Court, or this Court what involvement its counsel had in obtaining and publishing those
memoranda—or whether there was involvement of The Times editors who are John Doe

4
defendants in the underlying litigation (and who The Times has refused to identify)—despite
Project Veritas having specifically requested such an explanation. (Locke Aff. ¶ 6, Ex. 2). This,
alone, is a basis for the November 23, 2021 hearing before the Supreme Court to go forward.
14. Therefore, the interim relief granted in the Supreme Court’s Order to Show Cause
should not be disturbed, and the Supreme Court should be permitted to continue its inquiry with
the hearing on that Order currently set for the morning of Tuesday, November 23, 2021.
15. Project Veritas requests an opportunity to be heard before the Court acts on The

Times’ application, and is available for a hearing on the matter today.

5
Exhibit 1
 Friday, November 19, 2021 at 10:54:27 Eastern Standard Time

Subject: Re: Correspondence re New York Times Disclosure of Project Veritas A>orney-Client Privileged
Materials
Date: Wednesday, November 17, 2021 at 1:16:33 PM Eastern Standard Time
From: Libby Locke
To: Kurtzberg, Joel, David McCraw
CC: Andy Phillips

Joel and David –

We have received no response to this correspondence we sent five days ago. Accordingly,
today we are filing with the Supreme Court a motion for an order to show cause seeking
(1) an order directing the Times to remove Project Veritas' attorney-client privileged
material from its website and to destroy or return to Project Veritas all copies of Project
Veritas' privileged materials in the Times' possession; (2) an interim order directing the
Times to sequester and refrain from further disseminating or publishing Project Veritas'
privileged materials, and directing the Times to cease further efforts to acquire Project
Veritas' privileged materials; and (3) such other and further relief as the Court deems
appropriate.

Best,
Libby

Elizabeth M. Locke, P.C. | Partner

C L A R E L O C K E L L P
10 Prince Street | Alexandria, Virginia 22314
(202) 628-7402 - direct | (646) 263-7019 - cell
[email protected] | www.clarelocke.com
This electronic message transmission contains information from the law firm of Clare Locke LLP, which may be
confidential or privileged. The information is intended exclusively for the individual or entity named above. If you are
not the intended recipient, be aware that any disclosure, copying, distribution, or use of the contents of this information
is prohibited. If you received this electronic transmission in error, please notify us immediately
at [email protected].

From: Andy Phillips <[email protected]>

Date: Friday, November 12, 2021 at 9:44 PM
To: "Kurtzberg, Joel" <[email protected]>, David McCraw <mccrad@ny\mes.com>
Cc: Libby Locke <[email protected]>
Subject: Correspondence re New York Times Disclosure of Project Veritas A>orney-Client Privileged
Materials

Joel and David,

Please see the a>ached correspondence sent on behalf of our client, Project Veritas.

Andrew C. Phillips | Partner

C L A R E L O C K E L L P

Page 1 of 2
10 Prince Street | Alexandria, Virginia 22314
(202) 628-7404 - direct | (847) 951-7093 - cell
[email protected] | www.clarelocke.com

This electronic message transmission contains information from the law firm of Clare Locke LLP, which may be
confidential or privileged. The information is intended exclusively for the individual or entity named above. If you are
not the intended recipient, be aware that any disclosure, copying, distribution, or use of the contents of this information
is prohibited. If you received this electronic transmission in error, please notify us immediately
at [email protected].

Page 2 of 2
Exhibit
 Friday, November 19, 2021 at 10:52:36 Eastern Standard Time

Subject: NYSCEF No)fica)on: Westchester - Torts - Other - <LETTER / CORRESPONDENCE TO JUDGE>

63921/2020 (Project Veritas v. The New York Times Company et al)
Date: Thursday, November 18, 2021 at 9:49:36 AM Eastern Standard Time
From: efi[email protected]
To: Libby Locke, efi[email protected], [email protected], [email protected], Andy
Phillips, James O'Toole, jus)[email protected], [email protected], [email protected],
[email protected], [email protected], [email protected]

Westchester County Supreme Court

Notification of Filing
11/18/2021

On 11/18/2021, the NYSCEF System received the documents listed below from filing user JOEL
KURTZBERG . Please keep this notice as a confirmation of this filing.

Case Information
Index #: 63921/2020
Caption: Project Veritas v. The New York Times Company et al
eFiling Status: Partial Participation Recorded
Assigned Case Judge: Charles D Wood

During the COVID-19 Health Emergency

By order of the Chief Administrative Judge, the court shall NOT request working copies of documents
in paper format.

Documents Received
Doc # Document Received Date
169 LETTER / CORRESPONDENCE TO JUDGE 11/18/2021
Letter Requesting the Opportunity to File an Opposition to the Order to Show Cause
Motion #: 8

E-mail Service Notifications Sent

Name Email Address
ROBERT SPOLZINO [email protected]

JUSTIN KELTON [email protected]

JOEL KURTZBERG [email protected]

Stephen Klein [email protected]

Page 1 of 2
Andrew Phillips [email protected]

E-mail Service Notifications NOT Sent

Court rules require hard copy service upon non-participating parties and attorneys who have opted-out or declined consent
Party Attorney
John Does 1-5, Defendant/Respondent No Representation Recorded

Filing User
JOEL KURTZBERG | [email protected]

NOTICE: This e-mail is intended only for the named recipient and for the purposes of the New York State Courts E-Filing System. If
you are neither the intended recipient nor a person designated to receive messages on behalf of the intended recipient, notify the
sender immediately.

If you are unsure of the contents or origin of this email, it is advised to NOT click on any links provided. Instead, log
into your NYSCEF account to access the documents referred to in this email. Thank you.
Timothy C. Idoni
Email: http://www.westchesterclerk.com
Website: [email protected]

Page 2 of 2
Exhibit 3
 CAHILL GORDON & REINDEL LLP
32 OLD SLIP
NEW YORK, NY 10005
HELENE R. BANKS ARIEL GOLDMAN TELEPHONE: (212) 701-3000 BRIAN T. MARKLEY ANTHONY K. TAMA
ANIRUDH BANSAL PATRICK GORDON WWW.CAHILL.COM MEGHAN N. McDERMOTT JONATHAN D. THIER
DAVID L. BARASH JASON M. HALL ___________ WILLIAM J. MILLER JOHN A. TRIPODORO
LANDIS C. BEST STEPHEN HARPER EDWARD N. MOSS GLENN J. WALDRIP, JR.
BRADLEY J. BONDI WILLIAM M. HARTNETT 1990 K STREET, N.W. NOAH B. NEWITZ HERBERT S. WASHER
BROCKTON B. BOSSON NOLA B. HELLER WASHINGTON, DC 20006-1181 WARREN NEWTON § MICHAEL B. WEISS
JONATHAN BROWNSON * CRAIG M. HOROWITZ (202) 862-8900 DAVID R. OWEN DAVID WISHENGRAD
JOYDEEP CHOUDHURI * DOUGLAS S. HOROWITZ JOHN PAPACHRISTOS C. ANTHONY WOLFE
JAMES J. CLARK TIMOTHY B. HOWELL CAHILL GORDON & REINDEL (UK) LLP LUIS R. PENALVER COREY WRIGHT
CHRISTOPHER W. CLEMENT DAVID G. JANUSZEWSKI 20 FENCHURCH STREET KIMBERLY PETILLO-DÉCOSSARD ELIZABETH M. YAHL
LISA COLLIER ELAI KATZ LONDON EC3M 3BY SHEILA C. RAMESH JOSHUA M. ZELIG
AYANO K. CREED JAKE KEAVENY +44 (0) 20 7920 9800 MICHAEL W. REDDY
PRUE CRIDDLE ± BRIAN S. KELLEHER ___________ OLEG REZZY
SEAN M. DAVIS RICHARD KELLY THORN ROSENTHAL
STUART G. DOWNING CHÉRIE R. KISER ‡ WRITER’S DIRECT NUMBER TAMMY L. ROY * ADMITTED AS A SOLICITOR IN
ENGLAND AND WALES ONLY
ADAM M. DWORKIN JOEL KURTZBERG (212) 701-3120 JONATHAN A. SCHAFFZIN
± ADMITTED AS A SOLICITOR IN
ANASTASIA EFIMOVA TED B. LACEY DARREN SILVER WESTERN AUSTRALIA ONLY
JENNIFER B. EZRING MARC R. LASHBROOK JOSIAH M. SLOTNICK
HELENA S. FRANCESCHI ALIZA R. LEVINE RICHARD A. STIEGLITZ JR. ‡ ADMITTED IN DC ONLY
JOAN MURTAGH FRANKEL JOEL H. LEVITIN ROSS E. STURMAN § ADMITTED AS AN ATTORNEY
IN THE REPUBLIC OF SOUTH AFRICA
JONATHAN J. FRANKEL GEOFFREY E. LIEBMANN SUSANNA M. SUH ONLY

November 18, 2021

Re: Project Veritas v. The New York Times Company, Maggie

Astor, Tiffany Hsu, and John Does 1-5 (Index No.
63921/2020)

Dear Justices Lefkowitz and Wood:

We write on behalf of Defendant The New York Times Company (“The Times”)
in the above-captioned action to inform the Court that we are in receipt of Plaintiff’s Motion for
an Order to Show Cause (NYSCEF # 164-68). Plaintiff’s Motion and proposed Order to Show
Cause seek the extraordinary remedy of a prior restraint—“the most serious and the least tolerable
infringement on First Amendment rights.” Nebraska Press Association v. Stuart, 427 U.S. 539,
559 (1976). As the United States Supreme Court recognized nearly 100 years ago, the “chief
purpose of the [First Amendment] guaranty [is] to prevent previous restraints upon publication.”
Near v. Minnesota ex rel. Olson, 283 U.S. 697, 713 (1931). Prior restraints bear a “heavy
presumption against . . . constitutional validity,” “may be imposed only in the most exceptional
cases,” and can only be issued “upon a showing on the record that such expression will
immediately and irreparably create public injury.” Porco v. Lifetime Entertainment Services, LLC,
116 A.D.3d 1264, 1266 (3d Dep’t 2014) (internal citations and quotation marks omitted) (reversing
order enjoining the broadcast of a movie claimed to violate NY Civil Rights Law Sections 50/51
and finding the order to be an unconstitutional prior restraint).
CAHILL GORDON & REINDEL LLP

-2-

Plaintiff’s proposed Order to Show Cause requests, among other things, that the
Court enter an order directing The Times to “refrain from further disseminating or publishing”
information that Project Veritas asserts, without evidence, that The Times obtained improperly.
Such an order is, on its face, the paradigmatic example of an unconstitutional prior restraint. See,
e.g., Alexander v. United States, 509 U.S. 544, 550 (1993) (“Temporary restraining orders and
permanent injunctions—i.e., court orders that actually forbid speech activities—are classic
examples of prior restraints.”); Organization for a Better Austin v. Keefe, 402 U. S. 415 (1971)
(vacating order “enjoining petitioners from distributing leaflets anywhere in the town of
Westchester, Illinois” as impermissible prior restraint); Vance v. Universal Amusement Co., 445
U. S. 308, 311, 317 (1980) (per curiam) (striking down, on prior restraint grounds, Texas statute
that authorized courts, upon a showing that obscene films had been shown in the past, to issue an
injunction prohibiting future exhibition of films that had not yet been found to be obscene); Porco,
116 A.D.3d at 1266.

Before the imposition of such a draconian and disfavored restriction, The Times
should have the opportunity to be heard. The Times therefore respectfully requests that the Court
hold in abeyance Plaintiff’s request to enter an Order to Show Cause in order to permit The Times
to file a response in opposition to Plaintiff’s request no later than November 24, 2021. As our
forthcoming opposition will make clear, Plaintiff’s request is factually and legally deficient. The
request lacks merit and seeks relief that the Court cannot and must not grant.

Respectfully submitted,

/s/ Joel Kurtzberg

Joel Kurtzberg

Hon. Joan B. Lefkowitz

Hon. Charles D. Wood
Supreme Court Justices, 9th JD
Westchester County Courthouse
111 Dr. Martin Luther King Jr. Boulevard
White Plains, New York 10601

VIA NYSCEF

Cc: All counsel of record (via NYSCEF)

Exhibit 4
 Friday, November 19, 2021 at 10:51:42 Eastern Standard Time

Subject: NYSCEF Alert: Westchester - Torts - Other - Entry of Order/Judgment 63921/2020 (Project Veritas v.
The New York Times Company et al)
Date: Thursday, November 18, 2021 at 9:56:00 AM Eastern Standard Time
From: efi[email protected]
To: Libby Locke, efi[email protected], [email protected], [email protected], Andy
Phillips, James O'Toole, jus[[email protected], [email protected], [email protected],
[email protected], [email protected], [email protected]

Westchester County Supreme Court

NOTIFICATION OF ENTRY OF ORDER/JUDGMENT

Document: 170 - ORDER TO SHOW CAUSE

Please note that the above referenced order/judgment has been entered in the office of the County Clerk.
The date and time of entry are indicated by the file stamp affixed to the document and displayed on the
document detail page.

Unless otherwise directed by the court, receipt of this notification does not constitute service of the
referenced order/judgment upon any party. See e-filing rules regarding service of an order/judgment with
notice of entry. 202.5-b(h)(2).

Case Information
Index #: 63921/2020
Caption: Project Veritas v. The New York Times Company et al
eFiling Status: Partial Participation Recorded
Assigned Case Judge: Charles D Wood

E-mail Service Notifications Sent

Name Email Address
ROBERT SPOLZINO [email protected]

JUSTIN KELTON [email protected]

JOEL KURTZBERG [email protected]

Stephen Klein [email protected]

Andrew Phillips [email protected]

E-mail Service Notifications NOT Sent

Court rules require hard copy service upon non-participating parties and attorneys who have opted-out or declined consent
Party Attorney

Page 1 of 2
John Does 1-5, Defendant/Respondent No Representation Recorded

NOTICE: This e-mail is intended only for the named recipient and for the purposes of the New York State Courts E-Filing System. If
you are neither the intended recipient nor a person designated to receive messages on behalf of the intended recipient, notify the
sender immediately.

If you are unsure of the contents or origin of this email, it is advised to NOT click on any links provided. Instead, log
into your NYSCEF account to access the documents referred to in this email. Thank you.
Timothy C. Idoni
Email: http://www.westchesterclerk.com
Website: [email protected]

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