FILED: WESTCHESTER COUNTY CLERK 12/01/2021 06:05 PM INDEX NO.

63921/2020
NYSCEF DOC. NO. 192 RECEIVED NYSCEF: 12/01/2021

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF WESTCHESTER

PROJECT VERITAS,

Plaintiff, Index No. 63921/2020

v. Hon. Charles D. Wood

THE NEW YORK TIMES COMPANY, MAGGIE

ASTOR, TIFFANY HSU, and JOHN DOES 1-5,

Defendants.

PLAINTIFF’S REPLY BRIEF IN SUPPORT OF 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

Robert Spolzino
Justin T. Kelton
ABRAMS, FENSTERMAN, FENSTERMAN,
EISMAN, FORMATO, FERRARA, WOLF &
CARONE, LLP
81 Main Street, Suite 306
White Plains, NY 10601
Telephone: (914) 607-7010
rspolzino@abramslaw.com
jkelton@abramslaw.com

Elizabeth M. Locke, P.C. (pro hac vice)

Andrew C. Phillips (pro hac vice)
CLARE LOCKE LLP
10 Prince Street
Alexandria, VA 22314
Telephone: (202) 628-7400
libby@clarelocke.com
andy@clarelocke.com
Stephen Klein (pro hac vice)
BARR & KLEIN PLLC
1629 K Street NW Ste. 300
Washington, DC 20006
Telephone: (202) 804-6676
steve@barrklein.com

1 of 27
FILED: WESTCHESTER COUNTY CLERK 12/01/2021 06:05 PM INDEX NO. 63921/2020
NYSCEF DOC. NO. 192 RECEIVED NYSCEF: 12/01/2021

Benjamin Barr (pro hac vice)

BARR & KLEIN PLLC
444 N. Michigan Ave.
Chicago, Illinois 60611
Telephone: (202) 595-4671
ben@barrklein.com
Attorneys for Plaintiff Project Veritas

2 of 27
FILED: WESTCHESTER COUNTY CLERK 12/01/2021 06:05 PM INDEX NO. 63921/2020
NYSCEF DOC. NO. 192 RECEIVED NYSCEF: 12/01/2021

TABLE OF CONTENTS

TABLE OF AUTHORITIES .......................................................................................................... ii

PRELIMINARY STATEMENT .................................................................................................... 1

ARGUMENT .................................................................................................................................. 3

I. This Court Can and Should Address The Times’ Dissemination of the Attorney-Client
Privileged Material of Its Litigation Adversary. ................................................................. 3

A. The Times Asks This Court to Rewrite § 3103(c)’s Text to Apply Only to
Formal Discovery Requests, Ignoring Its Plain Language. .................................... 4

B. The Times Asks This Court to Rewrite § 3103(c)’s Text to Grant The Times,
As a Media Defendant, Immunity From Its Straightforward Application. ............. 6

II. The Attorney-Client Privileged Memos Are Directly Related to Veritas’ Defamation
Claims, and The Times’ Defenses, in The Defamation Litigation. .................................. 10

III. The Times Has Not Offered Any Explanation Regarding Its Counsel’s Involvement in
Disseminating Veritas’ Privileged Materials. ................................................................... 13

IV. The Court Should Grant the Relief Requested Or, in the Alternative, Permit Additional
Fact-Finding. ..................................................................................................................... 15

A. The Protective Order Veritas Seeks Is Exceedingly Narrow, and Without It, the
Court Will Set a Bad Precedent for This Case and Future Litigants. ................... 15

B. The Times Should Be Barred from Using the Privileged Information in this
Litigation. .............................................................................................................. 17

C. The Court Can Allow for Limited Discovery. ...................................................... 19

CONCLUSION ............................................................................................................................. 20

3 of 27
FILED: WESTCHESTER COUNTY CLERK 12/01/2021 06:05 PM INDEX NO. 63921/2020
NYSCEF DOC. NO. 192 RECEIVED NYSCEF: 12/01/2021

TABLE OF AUTHORITIES

Page(s)
Cases
Associated Press v. NLRB,
301 U.S. 103 (1937) .................................................................................................................. 18

Bartnicki v. Vopper,
532 U.S. 514 (2001) .............................................................................................................. 8, 11

Baumann v. District of Columbia,

987 F. Supp. 2d 68 (D.D.C. 2013) .............................................................................................. 7

Boehner v. McDermott,
484 F.3d 573 (D.C. Cir. 2007) .................................................................................................... 7

Bridge C.A.T. Scan Assocs. v. Technicare Corp.,

710 F.2d 940 (2d Cir. 1983) ....................................................................................................... 9

Cohen v. Cowles Media Co.,

501 U.S. 663 (1991) .............................................................................................................. 7, 18

Collins v. Troy Publ’g Co. Inc.,

623 N.Y.S.2d 663 (N.Y. App. Div. 3d Dep’t 1995) ................................................................. 22

Divito v. Fiandach,
160 A.D.3d 1404 (N.Y. App. Div. 4th Dep’t 2018) ................................................................. 16

In re Estate of Weinberg,
509 N.Y.S.2d 240 (N.Y. Surr. Ct. 1986) .................................................................................... 4

In re Weinberg,
129 A.D.2d 126 (N.Y. App. Div. 1st Dep’t 1987).................................................................... 17

Levy v. Arbor Com. Funding, LLC,

138 A.D.3d 561 (N.Y. App. Div. 1st Dep’t 2016).................................................................... 22

Lieberman v. Green,
190 A.D.3d 713 (N.Y. App. Div. 2d Dep’t 2021) .................................................................... 22

Matter of Lung,
122 N.Y.S.3d 364 (N.Y. App. Div. 2d Dep’t 2020) ................................................................. 16

Nicholson v. Keyspan Corp.,

836 N.Y.S.2d 501 (Table),
2007 WL 641414 (Sup. Ct. Suffolk Cnty. Feb. 28, 2007) .............................. 6, 9, 10, 11, 15, 17

ii

4 of 27
FILED: WESTCHESTER COUNTY CLERK 12/01/2021 06:05 PM INDEX NO. 63921/2020
NYSCEF DOC. NO. 192 RECEIVED NYSCEF: 12/01/2021

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) ........................................... 2, 3, 5, 11, 17, 19

Seattle Times Co. v. Reinhart,

467 U.S. 20 (1984) ...................................................................................................................... 8

Stevens v. St. Tamminy Parish Gov’t,

212 So.3d 568 (La. Ct. App. 2017) ............................................................................................. 9

Surgical Design Corp. v. Correa,

21 A.D.3d 409 (N.Y. App. Div. 2d Dep’t 2005) ...................................................... 2, 4, 5, 6, 19

United States v. Aguilar,

515 U.S. 593 (1995) .................................................................................................................... 7

Statutes
CPLR § 3102........................................................................................................................... 3, 4, 5

CPLR § 3103............................................................... 2, 3, 4, 5, 6, 9, 10, 11, 14, 16, 17, 18, 21, 22

Rules
N.Y.R.P.C. 4 ................................................................................................................................. 14

N.Y.R.P.C. 8.4 .............................................................................................................................. 14

iii

5 of 27
FILED: WESTCHESTER COUNTY CLERK 12/01/2021 06:05 PM INDEX NO. 63921/2020
NYSCEF DOC. NO. 192 RECEIVED NYSCEF: 12/01/2021

PRELIMINARY STATEMENT

The Times’ Opposition to Plaintiff Project Veritas’ Motion for an Order to Show Cause 1

fails to meaningfully rebut Veritas’ position—supported by New York procedural rules, caselaw,

and common sense—that this Court has authority to take remedial action when a litigant before it,

and said litigant’s litigation counsel, intentionally acquire and publish the attorney-client

privileged materials of the opposing party. Of course, as a media organization, Project Veritas

strongly believes that freedom of speech is a bedrock principle of the American republic. But,

unlike The Times, it also recognizes and respects the sanctity of the attorney-client privilege of its

litigation adversary—as well as the rules of procedure and the inherent authority for courts to

implement them to ensure the effective administration of justice. Without the proper and effective

administration of the judicial branch to adjudicate disputes between parties before it, the American

republic crumbles—and the First Amendment with it.

Existing New York law strikes an appropriate balance between First Amendment rights

and the rights and duties of parties who are litigating their dispute before New York courts. While,

generally speaking, a court has limited authority to restrict a person or entity—media or

otherwise—from publishing information about a third party it has obtained (absent evidence the

acquisition involved wrongful or illegal conduct), the calculus is entirely different when the would-

be publisher is a litigant before the Court, when the materials to be published are attorney-client

privileged, and the holder of the privilege is an opposing litigant. In that specific and limited

context, New York law grants the Court authority to protect the integrity of the judicial process

and ensure that each party can litigate the case secure in its foundational right to have free, open,

1
Mem. of Law in Opp’n to Pl.’s Mot. Pursuant to CPLR § 3103(c) for an Order to Show Cause Seeking to Enjoin
The New York Times from Gathering and Publishing Information About Project Veritas Outside of this Litigation
Context (“Opposition” or “Opp’n”) (Nov. 22, 2021) [Dkt. 185].

6 of 27
FILED: WESTCHESTER COUNTY CLERK 12/01/2021 06:05 PM INDEX NO. 63921/2020
NYSCEF DOC. NO. 192 RECEIVED NYSCEF: 12/01/2021

and unfettered communication with its counsel. The limited relief that Veritas seeks here is thus

entirely consistent with established New York law.

The Times’ arguments to the contrary are unavailing. At bottom, The Times is asking this

Court to rewrite the text of CPLR § 3103(c) and to provide it, as a media defendant, a special

immunity from § 3103(c)’s application by dressing up its arguments in First Amendment and prior

restraint jurisprudence, supported entirely by inapposite caselaw. The Times wholly ignores that

§ 3103’s text provides that a protective order may issue where disclosure is obtained through

“irregular”—not just “improper”—means. And The Times has no meaningful response to

distinguish New York cases like Omni Health and Surgical Design, where 3103(c) protective

orders were issued regarding disclosures obtained outside and before the formal discovery process.

Because it cannot avoid § 3103’s text and caselaw interpreting it, The Times resorts to

broad constitutional arguments, mislabeling Veritas’ request as an “unconstitutional prior

restraint.” But The Times cites no caselaw to support that proposition in the context of parties to

active litigation before the Court. Nor does The Times grapple with the bedrock principle that

laws of general applicability, like court rules of procedure and ethical obligations for attorneys,

apply with equal weight and force to the media. And The Times’ position that ethical

considerations have no bearing where an attorney participates in deliberately revealing the

attorney-client confidences of a litigation adversary is not, and cannot be, the law.

Finally, The Times argues a protective order cannot issue because the privileged

memoranda it acquired and published have no relation to the issues in this case. Even if that were

a limitation on the Court’s authority (The Times provides no support for that argument), it is simply

counterfactual. Based on The Times own arguments and briefing before this Court in its Motion

to Dismiss, the content and subject matter of the memoranda—what deception is or is not, and

7 of 27
FILED: WESTCHESTER COUNTY CLERK 12/01/2021 06:05 PM INDEX NO. 63921/2020
NYSCEF DOC. NO. 192 RECEIVED NYSCEF: 12/01/2021

what methods of journalism are or are not legal under federal law—are clearly related to Veritas’

claims and The Times’ defenses in the litigation. And if it is not, then The Times will have no

problem agreeing to suppressing, in the defamation litigation, any evidence or argument related to

whether Veritas’ methods for conducting its journalism violate the law.

For the reasons set forth in Veritas’ Memorandum of Law, this Reply, and as set forth by

counsel at oral argument, the Court can and should grant the Motion for an Order to Show Cause

and issue the narrow relief Veritas has requested to ensure the proper administration of justice and

to preserve the integrity of this Court.

ARGUMENT

I. This Court Can and Should Address The Times’ Dissemination of the Attorney-
Client Privileged Material of Its Litigation Adversary.

In its Motion, Veritas cited several cases addressing the precise conduct at issue here and

holding that New York courts have authority, pursuant to § 3103(c), to issue an appropriate order

to prevent a party and its counsel from seeking to obtain and distribute the attorney-client

privileged materials of an adversary during litigation. 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); In re Estate of Weinberg, 509 N.Y.S.2d 240 (N.Y. Surr.

Ct. 1986); Surgical Design Corp. v. Correa, 21 A.D.3d 409, 410 (N.Y. App. Div. 2d Dep’t 2005).

To circumvent these decisions that are directly on point, The Times tries two different tacks,

neither of which are availing. First, The Times claims that a § 3103(c) protective order can only

issue regarding privileged material obtained through formal discovery requests under § 3102—an

argument that ignores the plain text of the statute and the facts of the relevant cases. Second, The

Times argues that this Court has no authority to issue a “prior restraint” absent evidence of

illegality or wrongdoing on its part. But that too ignores the text of § 3103(c) and the

8 of 27
FILED: WESTCHESTER COUNTY CLERK 12/01/2021 06:05 PM INDEX NO. 63921/2020
NYSCEF DOC. NO. 192 RECEIVED NYSCEF: 12/01/2021

distinguishing and dispositive factor here—that The Times is a litigant before this Court and is

therefore subject to the Court’s authority to manage disclosure and protect the integrity of the

judicial process.

A. The Times Asks This Court to Rewrite § 3103(c)’s Text to Apply Only to
Formal Discovery Requests, Ignoring Its Plain Language.

First, The Times argues that “CPLR § 3103(c) empowers the Court to control only the

distribution and publication of information obtained as part [of] an action’s disclosure/discovery

process.” (Opp’n at 10.) Essentially, The Times claims that because it obtained its litigation

adversary’s attorney-client privileged materials through means other than a formal CPLR § 3102

discovery request, this Court has no authority to restrict The Times’ dissemination and use of them.

(Id. at 8-12.) But this supposed “crucial distinction” is supported by neither the text and structure

of the Civil Practice Law and Rules, nor the relevant caselaw.

On its face, § 3103(c) allows a court to enter an appropriate order any time the “substantial

right of a party is prejudiced” because a disclosure “has been improperly or irregularly obtained.”

The Times’ assertion that this is limited to formal discovery requests is thus in conflict with the

plain language of the statute, which speaks not to formal disclosure devices set forth in § 3102,

like subpoenas, but rather “irregular[]” methods of obtaining information about an adversary.

The Times’ argument also ignores the structure of § 3103. CPLR § 3103(a) states:

(a) Prevention of abuse. The court may at any time on its own
initiative, or on motion of any party or of any person from whom or
about whom discovery is sought, make a protective order denying,
limiting, conditioning or regulating the use of any disclosure device.
Such order shall be designed to prevent unreasonable annoyance,
expense, embarrassment, disadvantage, or other prejudice to any
person or the courts.

This section, which also grants the Court authority to issue a protective order, specifically

addresses orders preventing parties from abusing formal “disclosure device[s],” set forth in § 3102.

9 of 27
FILED: WESTCHESTER COUNTY CLERK 12/01/2021 06:05 PM INDEX NO. 63921/2020
NYSCEF DOC. NO. 192 RECEIVED NYSCEF: 12/01/2021

Thus, subsection (a) of the statute is the applicable provision when asking the Court to address a

formal discovery request, while subsection (c) is plainly directed at other, informal methods of

information gathering outside of § 3102 channels. See § 3103(c).

The caselaw fully supports this interpretation of § 3103(c) and belies the supposed

distinction upon which The Times rests its argument. In Omni Health, for example, the Supreme

Court issued a § 3103(c) protective order where no formal subpoena or discovery request was

involved; instead, plaintiffs had informally obtained privileged materials from their adversary’s

former employee. 2011 WL 4985197, at *5-8. And likewise, in Surgical Design Corp. v. Correa,

21 A.D.3d 409, 410 (N.Y. App. Div. 2d Dep’t 2005), the defendants (who were former employees

of the plaintiff) retained privileged letters prepared by counsel for their employer that they had

received during their employment—thus long before litigation (and much less formal discovery)

commenced. Although the offending party utilized no formal disclosure method in obtaining the

attorney-client privileged materials, a § 3013(c) order was appropriate because this irregular

possession of the plaintiff’s privileged materials, outside of the formal discovery process, violated

its substantial rights. Id. at 409-410. And in Nicholson v. Keyspan Corp., 836 N.Y.S.2d 501

(Table), 2007 WL 641414 (Sup. Ct. Suffolk Cnty. Feb. 28, 2007), the court issued a broad

§ 3103(c) order prohibiting dissemination, and requiring the destruction/return, of a privileged

document that the Court denied access to through regular discovery channels, but which the

plaintiffs then managed to otherwise obtain. Id. at *1, 4.

In sum, the paradigmatic situation for a § 3103(c) protective order is where one party uses

irregular, informal means to discover the attorney-client privileged materials of a litigation

adversary. New York courts have repeatedly held that in such a context there is authority under

the CPLR to issue a protective order to safeguard the affected party’s substantial rights in its

10 of 27
FILED: WESTCHESTER COUNTY CLERK 12/01/2021 06:05 PM INDEX NO. 63921/2020
NYSCEF DOC. NO. 192 RECEIVED NYSCEF: 12/01/2021

attorney-client confidences.

B. The Times Asks This Court to Rewrite § 3103(c)’s Text to Grant The Times,
As a Media Defendant, Immunity From Its Straightforward Application.

Next, The Times also argues that it, as a media defendant, has a constitutional right under

the First Amendment to publish the privileged materials of its litigation adversary, so long as those

privileged materials were obtained outside of formal discovery channels and there is no evidence

that The Times obtained the information illegally. And, according to The Times, any order

prohibiting it from doing so is an “unconstitutional prior restraint.” (Opp’n at 5-12.) But, again,

The Times’ argument wholly ignores the text of § 3103(c). And the caselaw it cites directly

undercuts its argument.

It is important to note at the outset that § 3103(c) itself does not limit the authority to issue

an order protecting attorney-client privileged information only to situations where the litigant

seeking to intrude upon its opponent’s privilege actively engaged in illegal methods to obtain the

materials. Instead, § 3103(c) on its face is applicable to materials that were passively “obtained”—

even without any “improper” conduct. And like any other law of general applicability, there is a

strong presumption that the media is not immune from the reach of New York’s CPLR, even

though its application to a media litigant may have an incidental effect on its ability to publish.

See Cohen v. Cowles Media Co., 501 U.S. 663, 669 (1991); see also Boehner v. McDermott, 484

F.3d 573, 578-79 (D.C. Cir. 2007) (holding federal law prohibiting disclosure of illegally

intercepted communications in violation of state and federal wiretapping statutes did not offend

the First Amendment); United States v. Aguilar, 515 U.S. 593, 605-06 (1995) (no First Amendment

right for federal judge, who obtained information about an investigative wiretap from another

judge, the right to disclose that information to the subject of the wiretap in violation of the federal

wiretapping law); Baumann v. District of Columbia, 987 F. Supp. 2d 68, 78-81 (D.D.C. 2013).

11 of 27
FILED: WESTCHESTER COUNTY CLERK 12/01/2021 06:05 PM INDEX NO. 63921/2020
NYSCEF DOC. NO. 192 RECEIVED NYSCEF: 12/01/2021

Thus, The Times is subject to § 3103(c) the same as any other litigant unless it can show that the

Court is prohibited from applying it in the specific context of a media entity that is a party to

litigation before the Court.

It cannot. The Times relies on Bartnicki v. Vopper, 532 U.S. 514 (2001), for its argument

that a court cannot restrain the press from publishing even privileged materials absent evidence

that there was wrongdoing or illegality in the acquisition of those materials. (Opp’n at 13-15.)

But Bartnicki is inapposite for the simple reason that it did not involve ongoing litigation or efforts

by a court to prevent one litigant from intentionally injuring the other’s right to unfettered and

confidential legal advice from counsel. Id. at 517-19.

In fact, The Times cites no case where a court held that it lacked authority to restrict a party

from obtaining and disseminating the opposition’s attorney-client privileged material during

ongoing litigation. The Times, for example, relies heavily on Seattle Times Co. v. Reinhart, 467

U.S. 20 (1984). There, however, the Supreme Court expressly approved the entry of a protective

order barring a media defendant from publishing the plaintiff’s donor lists and rejected the notion

that “a litigant has an unrestrained right to disseminate information that has been obtained through

pretrial discovery.” Id. at 31. Seattle Times did not hold that a protective order can never issue

for attorney-client privileged information obtained by a litigation adversary outside the formal

discovery process or that such an order would be per se unconstitutional. Indeed, because the

materials at issue were obtained through formal discovery channels, id. at 25-27, the Court did not

have the occasion to consider when a protective order would be appropriate under different

circumstances, like those presented here.

Bridge C.A.T. Scan Associates v. Technicare Corp., 710 F.2d 940 (2d Cir. 1983) provides

no greater help to The Times. It presented the question, under Federal Rule of Civil Procedure 26,

12 of 27
FILED: WESTCHESTER COUNTY CLERK 12/01/2021 06:05 PM INDEX NO. 63921/2020
NYSCEF DOC. NO. 192 RECEIVED NYSCEF: 12/01/2021

of whether a federal judge could issue a protective order directed at claimed trade secrets—not

attorney-client privileged materials of a litigation adversary—obtained by plaintiff’s counsel from

public sources before litigation began between the parties. Id. at 942-43, 945. The Technicare

court held that FRCP 26 does not grant a federal court authority to issue a protective order in those

circumstances where the materials were already publicly available and not obtained through formal

discovery. Id. Notably, state courts have rejected Technicare’s holding precisely because their

state procedural rules—like New York’s—do allow for limits on litigants disseminating an

adversary’s attorney-client protected communications, even if obtained through informal means.

See, e.g., Stevens v. St. Tamminy Parish Gov’t, 212 So.3d 568 (La. Ct. App. 2017) (distinguishing

Technicare and holding that Louisiana’s procedural rules authorized a protective order barring a

litigant from disseminating an adversary’s privileged materials obtained through informal means

during litigation).

The Times also relies heavily on Nicholson v. Keyspan Corp., 836 N.Y.S.2d 501 (Table),

2007 WL 641414 (Sup. Ct. Suffolk Cnty. Feb. 28, 2007), arguing that the attorney-client privilege

cannot “bar a news organization from publishing information that is of public concern.” (Opp’n at

15-16.) But far from supporting The Times’ position, Nicholson perfectly illustrates the distinction

between the authority this Court has regarding the conduct of a litigant before it, as opposed to a

non-litigant third party. In Nicholson, while the plaintiffs and defendant were already engaged in

ongoing environmental contamination litigation, the plaintiffs obtained and disseminated the

defendant’s attorney-client privileged strategy paper. Nicholson, 2007 WL 641414, at *2-3.

Separately, third-party members of the media, who were not parties to the underlying litigation,

also obtained copies of the document, and the defendant sought to enjoin the media entities from

disseminating it as well. Id. at *5-6.

13 of 27
FILED: WESTCHESTER COUNTY CLERK 12/01/2021 06:05 PM INDEX NO. 63921/2020
NYSCEF DOC. NO. 192 RECEIVED NYSCEF: 12/01/2021

Thus, the Suffolk County Supreme Court had to determine the limits of its authority to

restrict publication of a party’s attorney-client privileged material, both vis-à-vis the opposing

party litigant and third-party non-litigants. For media members who were not parties to the

underlying litigation, the Court concluded that it did not have authority to restrict their

dissemination of the defendant’s privileged material absent evidence that they had obtained the

material illegally or by improper means. Id. at *7. Notably, the media members were not parties

to the underlying litigation—and thus had no ongoing adversarial relationship in litigation with an

opposing party—but, instead, intervened into the case. See Nicholson, 2007 WL 641414, at *6.

In stark contrast, however, the Court had no trouble concluding that § 3103(c) granted it the

authority to make an “appropriate order” directed at the litigating plaintiffs before it, who were

engaged in efforts to publicize the defendant’s attorney-client privileged materials, to

“immediately stop further actions” to cause “irreparable injury” to the defendant’s rights in its

privileged communications. Id. at *4. The Court issued a protective order and injunction directing

the plaintiffs and their counsel to return to defendant all copies of its privileged material

immediately, to delete all copies published online, and to certify compliance within five days or

risk disqualification of the plaintiffs’ counsel. Id. at *1.

Accordingly, Nicholson perfectly illustrates and reconciles the difference between the

Bartnicki and Omni Health lines of cases. When it comes to an individual who is not a party to

underlying litigation before the Court, a court has limited authority to prevent the publication of

information. See Bartnicki, 532 U.S. at 535; Nicholson, 2007 WL 641414, at *7. However, where

a party to active litigation engages in efforts to disseminate an adversary’s attorney-client

privileged materials, whether obtained via formal discovery or irregular means, § 3103(c) grants a

court authority to address and restrict such conduct to protect the integrity of the judicial process

14 of 27
FILED: WESTCHESTER COUNTY CLERK 12/01/2021 06:05 PM INDEX NO. 63921/2020
NYSCEF DOC. NO. 192 RECEIVED NYSCEF: 12/01/2021

and the sanctity of the attorney-client privilege. See Omni Health, 2011 WL 4985197, at *10;

Nicholson, 2007 WL 641414 at *4.

In sum, accepting The Times’ arguments that § 3103(c) permits protective orders only in

situations involving information gathering through formal discovery methods and, in cases where

a media entity is a party, only in situations where the information was acquired wrongfully or

illegally, would result in a complete re-write of the text of the statute:

The Times’ arguments, and the inapposite cases upon which they rely, are irreconcilable with

§ 3103(c)’s text. By contrast, Veritas simply asks this Court to apply the plain language of New

York’s CPLR to the parties before it.

II. The Attorney-Client Privileged Memos Are Directly Related to Veritas’ Defamation
Claims, and The Times’ Defenses, in The Defamation Litigation.

The Times insists that the Court should not issue a § 3103(c) protective order for the

additional reason that Veritas’ attorney-client memos it acquired and published “have nothing to

do with the matters before th[e] Court” in the defamation litigation. (Opp’n at 19.) Nonsense.

The memoranda are directly related to both Project Veritas’ claims and The Times’ defenses for

six reasons.

10

15 of 27
FILED: WESTCHESTER COUNTY CLERK 12/01/2021 06:05 PM INDEX NO. 63921/2020
NYSCEF DOC. NO. 192 RECEIVED NYSCEF: 12/01/2021

First, the memos were authored by Veritas’ counsel of record—Mr. Benjamin Barr—in

the underlying defamation case. 2 Mr. Barr is and intends to remain counsel to Veritas in the

defamation litigation, and The Times’ publication of his legal advice to Veritas compromised, and

will continue to compromise, Veritas’ ability to have uninhibited communications with and

zealous representation of counsel—especially if the Court creates a precedent where such conduct

is blessed as permissible moving forward.

Second, Mr. Barr’s legal advice relates directly to Veritas’ claims in the underlying

litigation—that Veritas published a deceptive video targeting Congresswoman Ilhan Omar and

engaged in a covert, coordinated campaign with President Trump’s reelection campaign to spread

election disinformation. Mr. Barr’s advice regarding what “deception” in newsgathering is or is

not legal under federal laws, and what tactics are permissible and impermissible vis-à-vis federal

employees and elected public officials, goes to the heart of Veritas’ video reporting on illegal ballot

harvesting by members of Congresswoman Ilhan Omar’s staff. For example, the February 12,

2018 memorandum addresses whether certain portions of the Espionage Act may be implicated in

projects related to investigating public officials and elected members of the government—like

Congresswoman Omar. And, of course, The Times’ own article about Veritas’ legal memoranda

begins with the very claim that “Documents show how the conservative group worked with

lawyers to gauge how far its deceptive reporting practices could go before running afoul of federal

laws.” 3

2
During oral argument on November 23, 2021, Veritas provided a copy of the subject memoranda to the Court for in
camera review. Because they are attorney-client privileged, Veritas describes them generally herein but is not
attaching copies as exhibits. The Times has agreed such use and generalized descriptions do not constitute a privilege
waiver.
3
Adam Goldman & Mark Mazzetti, Project Veritas and the Line Between Journalism and Political Spying, N.Y.
Times (Nov. 11, 2021) (“The Times story”), https://www.nytimes.com/2021/11/11/us/politics/project-veritas-
journalism-political-spying.htm [Dkt. 174] (emphasis added).

11

16 of 27
FILED: WESTCHESTER COUNTY CLERK 12/01/2021 06:05 PM INDEX NO. 63921/2020
NYSCEF DOC. NO. 192 RECEIVED NYSCEF: 12/01/2021

Third, the content of the attorney-client memoranda relates directly to The Times’ defenses

in the defamation litigation, including on truth, fault, and damages. Although The Times claims

the memoranda have no relation to this case because Veritas’ defamation claims only go to its

journalism’s “content,” not its “methods,” The Times has argued, both in its Motion to Dismiss

and before the Second Appellate Division, that it should prevail because its statements are “true,”

including by arguing that Veritas engaged in deceptive reporting practices by offering payments

to one of its sources, because it uses undercover and covert investigative tactics that are not

“ethical,” and its use of sting operations and “entrapment tactics” shows that it engages in

“disinformation.” (See Mem. in Supp. of Defs.’ Mot. to Dismiss at 2, 5, 6 [Dkt. 14]; Appellants’

Br. at 14, Project Veritas v. N.Y. Times, No. 2021-02719 (N.Y. Div. App. 2nd Dep’t June 25,

2021).) Mr. Barr’s memos address precisely these topics, including the September 18, 2018 memo,

which discusses whether and when Veritas may or may not be permitted to offer payments to

sources, and his July 17, 2017 memo, which discusses whether Veritas reporters can use “fictitious

names” or “false pretenses” to obtain information from sources. With respect to fault and damages,

The Times argues that it believed its claims about Veritas’ deception to be true, and thus did not

act with actual malice, and that Veritas cannot recover damages and is “libel proof,” because others

in the media have said Veritas engages in deceptive reporting tactics, including unlawful tactics.

(See MTD Br. at 5-6 (“Veritas, a highly partisan outfit with a history of running cons, founded by

someone who plead[ed] guilty to a serious federal crime, is not a trustworthy source.”); Id. at 4-6,

15-16.)

Fourth, The Times’ own story about Veritas’ attorney-client memos references the

underlying defamation litigation. (The Times story at 2 (“Project Veritas is suing The New York

Times over a 2020 story about a video the group made alleging voter fraud in Minnesota.”).) The

12

17 of 27
FILED: WESTCHESTER COUNTY CLERK 12/01/2021 06:05 PM INDEX NO. 63921/2020
NYSCEF DOC. NO. 192 RECEIVED NYSCEF: 12/01/2021

Times’ claim that it was merely providing its readers’ a fulsome disclosure—so readers can

evaluate The Times’ biases in its journalism—fully underscores precisely why the publication of

the memos is related to the litigation: The Times acknowledges that there is an inherent bias when

its reporters cover its own litigation adversary in its newspaper. (Opp’n at 4 n. 2.)

Fifth, the attorney-client memos would be fully responsive to a discovery request by

Veritas to provide any documents in The Times’ possession relating to The Times’ defense that

Veritas engages in illegal or deceptive reporting tactics.

Finally, The Times most certainly will seek its own discovery related to Veritas’ purported

“deceptive reporting tactics,” including asking its employees and journalists about facts to show

that it has or does break the law. The Times has not agreed—and Veritas respectfully submits will

never agree—not to seek such testimony in this case. For that reason, alone, it is clear the attorney-

client memoranda are directly related to this litigation.

III. The Times Has Not Offered Any Explanation Regarding Its Counsel’s Involvement
in Disseminating Veritas’ Privileged Materials.

Remarkably, The Times has never denied that its outside litigation counsel, and its in-house

counsel, were aware of, provided advice on, and/or approved the decision to publish a litigation

adversary’s attorney-client privileged materials—not in response to Veritas’ November 12, 2021

letter, not in its Opposition, and not during the November 23 hearing. And tellingly, The Times

has argued that even if counsel were involved, such conduct would be entirely proper. (Opp’n. at

17-18.)

As the Court correctly noted during oral argument, while in a vacuum there may be nothing

untoward about The Times’ counsel offering reporters advice on the propriety of publishing

Veritas’ privileged materials, the context is simply different when the subject matter is legal

memoranda prepared by counsel of record in ongoing litigation between The Times and

13

18 of 27
FILED: WESTCHESTER COUNTY CLERK 12/01/2021 06:05 PM INDEX NO. 63921/2020
NYSCEF DOC. NO. 192 RECEIVED NYSCEF: 12/01/2021

Veritas. 4 The decision here to publish and intrude upon the privilege, rather than notify Veritas

and return the materials, not only generally implicates a “bedrock principle[] of our republic” 5 and

“a cornerstone protection for the rights of its citizens,” Nicholson, 2007 WL 641414, at *7, but

specifically the ability of Veritas to have free and unfettered communications with and zealous

representation by its counsel in litigating against The Times.

The Times and its counsel have not satisfactorily explained how such conduct would not

be violative of the New York Rules of Professional Conduct. The Times argues that Rule 4.4(a),

which bars a lawyer representing a client from seeking to violate the legal rights of a third person,

including “unwarranted intrusions into privileged relationships, such as the lawyer-client

relationship,” N.Y.R.P.C. 4.4 cmt. 1, is limited to “intrusive discovery requests and other discovery

misconduct.” (Opp’n at 17.) But the sole case The Times cites for this proposition contains no

such limitation, or even any discussion of the scope of Rule 4.4(a). (Id. (citing Matter of Lung,

122 N.Y.S.3d 364, 368 (N.Y. App. Div. 2d Dep’t 2020)).) And The Times’ brief cites an unrelated

ethics decision regarding Rule 4.4(b)—not 4.4(a)—a Rule Veritas did not rely upon at all. (Opp’n

at 17-18.) Similarly, The Times addresses Veritas’ argument that its counsels’ conduct violated

Rule 8.4(d)’s bar on attorney actions prejudicial to the administration of justice and inconsistent

with responsibilities as an officer of the Court, N.Y.R.P.C. 8.4 cmt. 3, only by labeling it a

“catchall”—as though a general rule does not apply with equal force to more specific ones—and

then misleadingly arguing that such conduct would not violate a different rule, Rule 8.4(a).

(Opp’n at 18 (citing N.Y.R.P.C. 8.4(a)).)

Even putting aside the question of the Court’s authority to restrain a reporter that ignores

4
Affidavit of Elizabeth M. Locke, P.C. in Supp. of Pl.’s Reply Br. in Supp. of Mot. 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.”), ¶ 3, Ex. 1 at 48:6-20 (“Oral Arg. Tr.”) (Nov. 23, 2021).
5
Id. at 6:22-7:2.

14

19 of 27
FILED: WESTCHESTER COUNTY CLERK 12/01/2021 06:05 PM INDEX NO. 63921/2020
NYSCEF DOC. NO. 192 RECEIVED NYSCEF: 12/01/2021

the sanctity of the attorney-client privilege, there can be little doubt that the Court has authority

over counsel who, in a case before the Court, knowingly engages in a course of conduct that causes

irreparable injury to a litigation opponent’s bedrock judicial rights. See Divito v. Fiandach, 160

A.D.3d 1404, 1406 (N.Y. App. Div. 4th Dep’t 2018) (“It is well established that the court has

‘inherent authority’ to preserve the integrity of the judicial process.”). Thus, while the Court

certainly has authority to address The Times’ conduct under § 3103(c), the Court’s inherent

authority also empowers it to address The Times’ and its counsel’s conduct.

At bottom, The Times’ defense of its counsel’s (hypothetical) involvement in acquiring

and publishing the attorney-client confidences of a litigation adversary is overly flippant and

wildly insufficient. New York courts take such misconduct seriously—as they should. See In re

Weinberg, 129 A.D.2d 126, 142 (N.Y. App. Div. 1st Dep’t 1987) (affirming § 3103(c) protective

order and ordering the disqualification of counsel that participated in the acquisition of the

opposing party’s privileged materials).

IV. The Court Should Grant the Relief Requested Or, in the Alternative, Permit
Additional Fact-Finding.

A. The Protective Order Veritas Seeks Is Exceedingly Narrow, and Without It,
the Court Will Set a Bad Precedent for This Case and Future Litigants.

Veritas seeks a narrow protective order that directs The Times: (1) to remove all references

to or descriptions of Veritas’ attorney-client privileged information published on The Times’

website on November 11, 2021; (2) to return or immediately destroy all copies of Veritas’ attorney-

client privileged materials in the Times’ possession; (3) to refrain from further publishing Veritas’

attorney-client privileged materials; and (4) orders The Times to cease further efforts to solicit and

acquire Veritas’ attorney-client privileged materials. This is consistent with the precise relief New

York courts have previously granted in identical situations. See, e.g., Omni Health, 2011 WL

4985197, at *10; Nicholson, 2007 WL 641414, at *1.

15

20 of 27
FILED: WESTCHESTER COUNTY CLERK 12/01/2021 06:05 PM INDEX NO. 63921/2020
NYSCEF DOC. NO. 192 RECEIVED NYSCEF: 12/01/2021

Veritas does not seek an order that broadly prohibits The Times from writing about or

criticizing Veritas—or this Court or the injunctive relief itself—just as it has done repeatedly in

the past where Veritas has not sought the Court’s intervention. 6 Instead, the narrow protective

order here would only limit The Times from “improperly or irregularly obtaining” and

disseminating the attorney-client privileged communication of its litigation adversary, (which even

The Times’ does not dispute) prejudices Veritas’ “substantial rights.” CPLR § 3103(c).

Whatever minor, incidental impact such an order has on The Times’ “newsgathering” can

and must yield. It is “beyond dispute that [The Times, as] ‘[t]he publisher of a newspaper has no

special immunity from the application of general laws.’” Cohen v. Cowels Media Co., 501 U.S.

663, 668 (1991) (quoting Associated Press v. NLRB, 301 U.S. 103, 132-33 (1937)). And there is

a “well-established line of decisions holding that generally applicable laws”—like § 3103(c)—“do

not offend the First Amendment simply because their enforcement against the press has incidental

effects on [the] ability to gather and report the news.” Id.

The Times should not be granted a special exemption from § 3103’s applicability by virtue

of its status as a media defendant. To do so creates an unworkable and dangerous precedent—for

this case where the Plaintiff is likewise a media entity—and for future cases before the Court.

While The Times is one of the most established media organizations in the United States, a

decision denying this protective order—particularly in today’s internet and social media age—will

permit any would-be citizen journalist, blogger, or Instagram influencer to claim the right to

publish their litigation adversary’s attorney-client privileged communication with impunity. That

is not, and cannot, be the law.

6
See, e.g., Adam Goldman & Mark Mazzetti, Activist and Ex-Spy Said to Have Plotted to Discredit Trump ‘Enemies’
in Government, N.Y. Times (May 13, 2021), https://www.nytimes.com/2021/05/13/us/politics/mcmaster-fbi-trump-
project-veritas.html; Michael Grynbaum, Judge Tries to Block New York Times’s Coverage of Project Veritas, N.Y.
Times (Nov. 18, 2021), https://www.nytimes.com/2021/11/18/business/media/new-york-times-project-veritas.html.

16

21 of 27
FILED: WESTCHESTER COUNTY CLERK 12/01/2021 06:05 PM INDEX NO. 63921/2020
NYSCEF DOC. NO. 192 RECEIVED NYSCEF: 12/01/2021

B. The Times Should Be Barred from Using the Privileged Information in this
Litigation.

In addition to the narrow protective order, the Court should bar the use of the legal

memoranda for any purpose in this case. The Times concedes that this is an appropriate remedy.

(Opp’n at 7-8 (representing that the memoranda at issue “have not been (and will not be) used in

this litigation,” and acknowledging the Court has authority to prevent their use in this litigation);

Oral Arg. Tr. at 36:2-22 (The Times’ counsel representing to the Court that The Times and its

counsel “do not intend to use [the memoranda] in this litigation…”).) And in each of the cases

cited by Veritas in which a New York court issued a § 3103(c) protective order addressing a

situation where a litigant irregularly obtained an adversary’s privileged materials, the courts

included suppression of the materials as part of the relief granted. See, e.g., § 3103(c) (where a

disclosure is “irregularly obtained” to the detriment of an adversary’s rights, an “appropriate order”

includes “an order that the information be suppressed”); Omni Health, 2011 WL 4985197, at *7

(holding that where counsel elicited privileged material from an opponent’s former employee, a

“proper remedy is suppression of the information”); Surgical Design Corp. v. Correa, 21 A.D.3d

409, 410 (N.Y. App. Div. 2d Dep’t 2005) (where counsel obtained adversary’s privileged

information from a former employee, “the appropriate remedy was suppression of the information

contained in those documents”).

But The Times’ definition of “use” is exceedingly narrow. Counsel for The Times

suggested at oral argument that these memoranda could not be used as evidence “in a summary

judgment motion” or “at trial in this case.” (Oral Arg. Tr. at 48:24-49:2.) But, of course, those

limited contexts are not the only way these materials can be “used” to aid The Times in gaining a

strategic advantage in this litigation. For example, while the memoranda themselves might not be

introduced as an exhibit in the deposition of a Veritas employee, The Times’ counsel taking the

17

22 of 27
FILED: WESTCHESTER COUNTY CLERK 12/01/2021 06:05 PM INDEX NO. 63921/2020
NYSCEF DOC. NO. 192 RECEIVED NYSCEF: 12/01/2021

deposition can certainly formulate examination topics and strategy based on the memos’ content.

The same is true for The Times’ employees who are fact witnesses in the case—if they have read

The Times’ coverage of these memoranda or the documents themselves, witnesses are able to craft

their testimony and answers accordingly. During the hearing, the Court asked precisely the right

question: “[A]t what point do you take off the independent advice hat and put on the hat that says,

‘I’m counsel in a pending litigation and I now have – I may now have obligations to’ – at what

point are you put on the spot where – I’m not saying you did this, but where counsel to a media

outlet who is in litigation might say, ha, this could kind of help me out, so go ahead and let’s

publish it.” (Oral Arg. Tr. at 48:6-20.) At the end of the day, The Times, the individual defendants,

the John Doe editors, and their counsel cannot “unknow” the existence of the legal memoranda,

their subject matter and content, or the fact that The Times disclosed their content and purpose in

a national news story claiming that they show how Veritas “worked with lawyers to gauge how

far its deceptive reporting practices could go before running afoul of federal laws.” 7

Accordingly, the only meaningful ways to prevent The Times’ “use” of these attorney-

client privileged materials is to: (1) conduct limited, targeted discovery to understand precisely

what steps The Times has taken to prevent or allow relevant individuals to the litigation to read

and publish these memoranda, and (2) suppress any evidence or argument by The Times

concerning Veritas’ allegedly unlawful or deceptive reporting tactics as fruit of the poisonous tree

flowing from acquisition and publication of the memoranda dealing with those subjects. The

Times—if it truly believes its own arguments—should have no objection to the suppression of this

evidence and these arguments. (See Opp’n at 19 (“Veritas’ motion should also be denied for the

7
Adam Goldman & Mark Mazzetti, Project Veritas and the Line Between Journalism and Political Spying, N.Y.
Times (Nov. 11, 2021), https://www.nytimes.com/2021/11/11/us/politics/project-veritas-journalism-political-
spying.html [Dkt. 174].

18

23 of 27
FILED: WESTCHESTER COUNTY CLERK 12/01/2021 06:05 PM INDEX NO. 63921/2020
NYSCEF DOC. NO. 192 RECEIVED NYSCEF: 12/01/2021

independent reason that the legal memoranda at issue have no relation to the matters before this

Court. … This case is about The Times’s description of the content of Project Veritas’s Ilhan Omar

Video, not about statements made about its methods for obtaining information.”) (emphasis in

original).) Thus, if this case is not about Veritas’ purportedly illegal methods for obtaining

information, then The Times should have no objection to the suppression of evidence and

arguments related to that topic. And the Court should suppress any discovery of, argument

concerning, or reference to Veritas’ information-gathering techniques and reporting tactics being

unlawful or deceptive.

C. The Court Can Allow for Limited Discovery.

Finally, if the Court accepts The Times’ argument that it cannot restrict The Times’

dissemination of Veritas’ privileged materials based on the current factual record (it should not),

then the Court can and should allow for additional fact-finding on two issues.

First, if the Court accepts The Times’ (erroneous) argument that it only has authority to

restrict acquisition and publication of Veritas’ attorney-client communications if there is a showing

that The Times acquired the materials through “improper means,” (Opp’n at 16), then the Court

should permit Veritas limited discovery and/or hold an evidentiary hearing on that issue, because

evidence concerning how The Times acquired Veritas’ privileged materials is solely in the hands

of The Times.

Second, if the Court determines it lacks any authority to issue relief pursuant to § 3103(c),

it should also permit Veritas limited discovery on the issue of the involvement of The Times’

counsel in the acquisition and publication of Veritas’ privileged materials, to determine whether

the Court should grant relief pursuant to New York ethical rules and its inherent authority to

preserve the integrity of the judicial process.

19

24 of 27
FILED: WESTCHESTER COUNTY CLERK 12/01/2021 06:05 PM INDEX NO. 63921/2020
NYSCEF DOC. NO. 192 RECEIVED NYSCEF: 12/01/2021

Finally, Veritas strongly suspects that The Times will refuse to provide discovery or

evidence to the Court on these matters, citing a journalist privilege and/or attorney-client privilege.

But The Times should not be permitted to use these privileges as both a sword and a shield to argue

that Veritas cannot present evidence of improper acquisition of, or attorney involvement in,

publishing these memoranda, while also claiming privilege over information exclusively within

its possession that would allow Veritas (and the Court) to obtain such evidence. See, e.g., Collins

v. Troy Publ’g Co. Inc., 623 N.Y.S.2d 663, 665 (N.Y. App. Div. 3d Dep’t 1995) (a media defendant

is prohibited “from using as a sword the information which they are shielding from disclosure”

under the journalist privilege); Levy v. Arbor Com. Funding, LLC, 138 A.D.3d 561, 562 (N.Y.

App. Div. 1st Dep’t 2016) (noting that “the attorney client privilege is meant to operate as a shield

or sword, but not both at once”). Accordingly, if The Times refuses to disclose this information,

the Court can—and should—hold that Veritas is entitled to an adverse inference on these matters.

Lieberman v. Green, 190 A.D.3d 713 (N.Y. App. Div. 2d Dep’t 2021) (affirming Supreme Court

order imposing adverse inference for failure to engage in discovery). Under such a scenario, an

adverse inference would support the Court’s granting of relief pursuant to § 3103(c).

CONCLUSION

For the foregoing reasons, Veritas requests that the Court grant its Motion for an Order to

Show Cause, and fashion an appropriate remedy, including taking limited discovery, to prevent

The Times from using Veritas’ attorney-client privileged materials in the litigation.

20

25 of 27
FILED: WESTCHESTER COUNTY CLERK 12/01/2021 06:05 PM INDEX NO. 63921/2020
NYSCEF DOC. NO. 192 RECEIVED NYSCEF: 12/01/2021

Dated: December 1, 2021 /s/ Justin T. Kelton

Justin T. Kelton
ABRAMS, FENSTERMAN, FENSTERMAN, EISMAN,
FORMATO, FERRARA, WOLF & CARONE, LLP
81 Main Street, Suite 306
White Plains, NY 10601
Telephone: (914) 607-7010
rspolzino@abramslaw.com
jkelton@abramslaw.com

Elizabeth M. Locke, P.C. (pro hac vice)

Andrew C. Phillips (pro hac vice)
CLARE LOCKE LLP
10 Prince Street
Alexandria, VA 22314
Telephone: (202) 628-7400
libby@clarelocke.com
andy@clarelocke.com

Stephen Klein (pro hac vice)

Barr & Klein PLLC
1629 K Street NW Ste. 300
Washington, DC 20006
Telephone: (202) 804-6676
steve@barrklein.com

Benjamin Barr (pro hac vice)

Barr & Klein PLLC
444 N. Michigan Ave.
Chicago, Illinois 60611
Telephone: (202) 595-4671
ben@barrklein.com

Attorneys for Plaintiff Project Veritas

26 of 27
FILED: WESTCHESTER COUNTY CLERK 12/01/2021 06:05 PM INDEX NO. 63921/2020
NYSCEF DOC. NO. 192 RECEIVED NYSCEF: 12/01/2021

CERTIFICATION OF WORD COUNT

According to the word-processing system used to prepare this document, the word count

for all printed text exclusive of the material omitted under 22 N.Y.C.R.R. § 202.8-b(c) is 6,410

words, which exceeds the limit for reply briefs set forth in 22 N.Y.C.R.R. § 202.8-b(a). On

November December 1, 2021 Plaintiff filed a letter request to exceed the word limit in this Reply

(up to 8,000 words) and the Court granted permission to do so by Order on December 1, 2021

[Dkt. 191].

Dated: December 1, 2021 /s/ Justin T. Kelton

Justin T. Kelton

27 of 27