Filing Summary

In April 2019, the Attorney General of New York, Letitia James, began investigating the NRA and related entities for violations of New York law relating primarily to the NRA’s not-for-profit status. As part of its investigation, the OAG subpoenaed Ackerman McQueen, the NRA’s long-time public relations firm, to provide documents relevant to the OAG’s investigation of the NRA. The Service Agreement between Ackerman and the NRA includes a nondisclosure agreement that purports to prevent Ackerman from providing any documents without the consent of the NRA. Ackerman told the OAG that it would comply with the subpoena but raised concerns about whether it could be liable to the NRA for violating the nondisclosure agreement if it did not permit the NRA to review and exercise veto power over any document production. This filing is the OAG’s petition to compel Ackerman to provide the documents requested in the subpoena without permitting the NRA to prereview the documents.

Key Points

• On July 8, 2019, the OAG subpoenaed Ackerman “seeking documents relating to potential misconduct by the NRA, its directors and officers, and its affiliated entities.” (Para. 3.).  Ackerman “expressed its desire to comply” with the subpoena but stated its concern that the NRA would sue Ackerman unless Ackerman permitted the NRA “to review and exercise veto power over any intended production of documents to the OAG.” (Para. 3; see Para. 34.)
• On June 22, 2019, the NRA wrote to Ackerman “purporting to terminate the Services [Agreement]” and demanding “‘immediate delivery of all materials’ covered by the NDA … despite the NRA’s knowledge that those materials were the subject of [the OAG’s subpoena].” (Para. 25.)
• On June 26, 2019, the NRA asked the OAG to allow the NRA to retain possession of documents from Ackerman and to then seek those documents “via requests made directly to the NRA.” (Para. 27.)
• The OAG argues that the NDA is void as against public policy to the extent it “purports to require a third party [Ackerman] to notify and gain the approval of a suspected wrongdoer [the NRA] before disclosing information to a law enforcement agency.” (Para. 4.).  The OAG states that the “integrity of [its] investigation into potential misconduct by the NRA … would be necessarily and irreparably compromised by allowing the investigative target to review, and potentially countermand, third parties’ prospective document productions in response to investigative subpoenas.” (Para. 4.)
• The OAG brought this lawsuit to compel Ackerman to produce documents responsive to the OAG’s subpoena “without delaying those productions to accommodate any purported right of the NRA to review and/or veto said productions.” (Para. 6.)
• The OAG determined that “the NRA’s involvement in [Ackerman’s] subpoena compliance process was impending the investigation and that OAG must take measures to protect the integrity of its investigation going forward.” (Para. 33.) It states in its petition that “allowing the NRA, the subject of its investigation, to contractually demand the right to pre-screen and potentially veto document productions from Ackerman and other third parties … would undermine OAG’s ability to protect its investigative sources and methods, maintain the confidentiality of its investigative theories and progress, and otherwise impede OAG in carrying out its multiple statutory mandates with respect to the enforcement of New York law.” (Para. 33.)
• The OAG asks for an order from the court that requires Ackerman to comply with the subpoena “without delaying or altering any aspect of that compliance so as to conform to any purported obligations under the NDA contained with the Services Agreement with the NRA.” (Para. 43.)