New York Attorney General Investigation

Decision and Order on Motion Ruling Against NRA

February 24, 2020

Filing Summary

This filing is the court’s decision on the OAG’s petition. The court grants the petition and requires Ackerman to comply with the OAG’s subpoena without giving the NRA an opportunity to preview and review Ackerman’s production. The court finds that Ackerman’s public-facing role with the NRA generally precludes the NRA from asserting any privilege with respect to communications with Ackerman. The court does grant an in camera review of certain communications.

Key Points

  • The court grants the OAG’s petition to compel Ackerman to comply with the subpoena without giving the NRA an opportunity to preview and review Ackerman’s production. (Pgs. 12–13.) But the court orders an in camera review of certain communications the NRA argues are privileged. (Pg. 12.)
  • The Service Agreement purports to require Ackerman to inform the NRA when it receives a subpoena and then allows the NRA to “object, move to quash the subpoena, or review outgoing documents for potential privilege.” (Pg. 3.)
  • The court holds that, in general, Ackerman’s communications with the NRA are not protected by the attorney-client privilege. (Pg. 6.) The court reasons that Ackerman, as a public relations firm, is neither an agent of the NRA nor the “functional equivalent” of an NRA employee. (Pgs. 6–7.)
  • The court considers the example of Dana Loesch, a former NRA spokesperson who worked for Ackerman. (Pg. 7.) The court noted that although Loesch “appeared on television to iterate the NRA’s position on Second Amendment legal issues,” she did not “play[] a necessary role in conveying legal strategy from the NRA’s lawyers.” (Pgs. 7–8.)
  • The court focused on the public-reaching nature of Ackerman’s involvement with the NRA as reason “it would be unreasonable to expect confidentiality.”  (Pg. 7.) As the court stated, “The NRA cannot use its publicist as a sword and a shield, for public outreach when it feels so inclined, and, in other instances, remain tucked away from public view.” (Pg. 8.)
  • The court holds that most of the purportedly privileged legal advice the NRA provided to Ackerman is not privileged. (Pg. 10.) But the court does request an in camera review of certain communications to see if they are privileged. (Pg. 10.)
  • The court holds that the First Amendment privilege does not apply because the “NRA’s concerns, that [Ackerman] might inadvertently disclose donors’ names, does not override [the] OAG’s authority to conduct a confidential law enforcement investigation without interference or monitoring.” (Pgs. 11–12.)
  • Finally, the court holds that a not-for-profit entity like the NRA may not “shield its conduct through use of an NDA,” which would “frustrate [the] OAG’s regulatory and law enforcement duties, and its oversight of charities.” (Pg. 12.)