Date: 12-26-2023

Case Style:

In re: Search Warrant dated November 3, 2021

Case Number: 1:21-mc-00825

Judge: Analisa Torres

Court: United States District for the Southern District of New York (Manhattan County)

Plaintiff's Attorney: Brian Dickerson

Defendant's Attorney: Robert Benjamin Sobelman and Mitzi Steiner

Description: New York, New York civil litigation lawyers represented the Plaintiff that sued the Defendant seeking a search warrant for information allegedly stolen from a laptop owned by Joe Biden's daughter.

In November 2021, the Honorable Sarah L. Cave issued three search warrants for electronic devices at the residences of James O'Keefe, Spencer Meads, and Eric Cochran, all members of Project Veritas, an “undercover investigative journalism” organization. Judge Cave found probable cause that the devices contained evidence of federal crimes. The Federal Bureau of Investigation (the “FBI”) executed the warrants and seized 47 devices. Project Veritas, O'Keefe, Meads, and Cochran (collectively, “Petitioners”) initiated this action to stop the Government from reviewing the devices, arguing that they “contain vast amounts of information protected by the First Amendment” and the attorney-client privilege. ECF No. 1 at 1.[1]

On December 8, 2021, the Court appointed the Honorable Barbara S. Jones (retired) (the “Special Master”) to oversee the review of the materials seized during the FBI searches. ECF No. 48. On March 21, 2023, the Special Master issued a report and recommendation (the “Report”). ECF No. 118. The Report recommended that all documents responsive to the search warrants and not protected by the attorney-client privilege should be disclosed to the Government's investigative team. Id. Petitioners object to the Special Master's recommendation. Pet'r Public Obj., ECF No. 127; Pet'r Sealed Obj., ECF No. 130. For the reasons stated below, the Court OVERRULES Petitioners' objections and ADOPTS the Special Master's recommendation.

BACKGROUND

I. Factual Background

Project Veritas is “a national media organization dedicated to undercover investigative journalism.” Pet'r Public Obj. at 4 (quoting Project Veritas Action Fund v. Rollins, 982 F.3d 813, 817 (1st Cir. 2020)). During the events at issue, Meads and Cochran worked for Project Veritas, and O'Keefe was its president. Id. The Government alleges that Petitioners played a role in a conspiracy (the “Conspiracy”) involving the “theft and interstate transportation of certain property stolen from” an individual (the “Victim”) who “was an immediate family member of a then-former government official who was a candidate for national political office.”[2] Gov. Public Opp. at 2, 4, ECF No. 137.

In September 2020, Aimee Harris and Robert Kurla Harris and Kurlander contacted Petitioners, who then paid the two to travel to New York and hand over the Victim's journal. Id. There, Harris allegedly revealed that the Victim had additional items in the Florida residence, and, “at Project Veritas's request,” she and
Kurlander returned to Florida to retrieve them. Id. The Government alleges that they stole additional items from the Victim and gave them to a Project Veritas employee in Florida, who transported the items to New York. Id. at 4-5. “Project Veritas subsequently paid Harris and Kurlander $20,000 each for the stolen property.” Id. at 5.

On August 25, 2022, Harris and Kurlander each pleaded guilty to one count of conspiracy to commit interstate transportation of stolen property. Id. at 3; see Plea Order, United States v. Harris & Kurlander, No. 22 Cr. 457 (S.D.N.Y. Aug. 29, 2022), ECF No. 11. During Harris' plea allocution, she stated that she “found property, including a journal, belonging to another person in a place where [she] was living,” and, although Harris knew that she “did not have a right to take the property,” she transported the journal with “another person” from Florida to New York City in September 2020. Plea Tr. at 20:1-10, 21:1-8, United States v. Harris, No. 22 Cr. 457-1 (S.D.N.Y. Aug. 25, 2022), ECF No. 12. Kurlander similarly said that he agreed to transport to New York City “items [that] were stolen from a residence in Florida,” despite knowing that “they were wrongfully obtained.” Plea Tr. at 21:25-22:13, United States v. Kurlander, No. 22 Cr. 457-2 (S.D.N.Y. Aug. 25, 2022), ECF No. 14.

II. Procedural Background

On November 3 and 5, 2021, the Honorable Sarah L. Cave issued search warrants authorizing the seizure of electronic devices from the residences of Meads, Cochran, and O'Keefe. ECF Nos. 127-2; 127-3; 127-5.

Judge Cave approved the warrants based on detailed affidavits submitted by the Government.[3] The affidavits established probable cause that Petitioners' devices contained evidence of federal crimes related to the Conspiracy-specifically, (1) conspiracy to transport stolen property across state lines and possess stolen goods, (2) interstate transportation of stolen property, (3) possession of stolen goods, (4) aiding and abetting, (5) accessory after the fact, and (6) misprision of felony, in violation of 18 U.S.C. §§ 2, 3, 4, 371, 2314, and 2315. ECF No. 1272 at 3; ECF No. 127-3 at 2; ECF No. 127-5 at 2; see Gov. Public Opp. at 2. The warrants authorized the Government to seize from the devices seven categories of evidence pertaining to the time period from August 1, 2020, to the date of seizure. ECF No. 127-2 at 3; ECF No. 127-3 at 2; ECF No. 127-5 at 2.

On November 4, 2021, the FBI seized seventeen devices from Meads' residence and twenty-eight from Cochran's. Id. at 8; ECF No. 127-4 at 2-4. On November 6, 2021, the FBI executed the warrant for O'Keefe's home and seized two mobile phones. Pet'r Public Obj. at 2, 9; ECF No. 127-4 at 1.

On November 10, 2021, Petitioners brought a motion requesting that the Court (1) halt the Government's review of the electronic devices, and (2) appoint a special master to review the devices before releasing them to the Government. ECF No. 1; 21 Misc. 819, ECF No. 8; 21 Misc. 825, ECF No. 8. Typically, a “filter team” at the United States Attorney's Office-a group of attorneys not involved in the Government's investigation-conducts a review of seized materials and then releases responsive, non-privileged materials to the Government's investigative team. ECF No. 48 at 2-3. “The objective of the responsiveness review is to determine whether the information the government seized [falls] within the scope of the categories of information sought in the search warrants.” United States v. Nejad, 436 F.Supp.3d 707, 734 (S.D.N.Y. 2020) (cleaned up). Given that the First Amendment may be implicated when a journalist's device is seized, the Court appointed the Special Master to review the seized materials prior to the filter team in order to “protect the public's confidence in the administration of justice.” ECF No. 48 at 3 (cleaned up).[4]

The Court directed the Special Master to proceed in three stages: (1) conduct an initial review to determine whether seized materials are responsive to the seven categories of documents specified in the warrants, (2) send only the responsive materials to the Government's filter team to determine if information should be withheld, and (3) review Petitioners' objections to the filter team's decisions. See id. at 4; Report at 1.

The Special Master reviewed documents on every device that contained accessible content and identified 1,021 documents responsive to the warrants.[5] Report at 4. The filter team reviewed those documents and found that seventeen are potentially protected by the attorney-client privilege. Id. at 5. Petitioners objected to the release of the remaining 1,004 documents on three bases: (1) that the documents are not responsive, (2) that the documents, although responsive, are protected by the reporter's privilege and the First Amendment, and (3) that certain documents are protected by the attorney-client privilege. Id. The Special Master agreed that sixty-one additional documents are not responsive. Id. at 19. For the remaining 943 documents (the “Responsive Materials”), the Special Master determined that the reporter's privilege does not prevent the release of the documents. Id. at 13-17. For the seventy-six documents which Petitioners claim are protected by the attorney-client privilege, the Special Master found that twenty-four are privileged or partially privileged, that forty are not privileged, and that, for the other ten, the privilege is vitiated by the crime-fraud exception. Id. at 17-19; see ECF No. 118-1 (spreadsheet documenting the Special Master's review).

* * *


The Second Circuit has “long recognized the existence of a qualified privilege for journalistic information” to prevent the “wholesale exposure of press files to litigant scrutiny.”[6] Gonzales v. Nat'l Broadcasting Co., Inc., 194 F.3d 29, 32, 35 (2d Cir. 1999). Recognizing that journalists are not “passive collectors of information whose evidence is a convenient means for

7

the government” to advance its investigations, N.Y. Times Co. v. Gonzales, 459 F.3d 160, 170 (2d Cir. 2006), the privilege seeks to avoid “the symbolic harm of making journalists appear to be an investigative arm of the judicial system, the government, or private parties,” Gonzales, 194 F.3d at 35. Under the privilege, reporters do not have to disclose “information gathered in a journalistic investigation.” Chevron Corp. v. Berlinger, 629 F.3d 297, 306 (2d Cir. 2011). However, the privilege is not absolute, and reporters may still have to turn over information if the party seeking disclosure-here, the Government-proves that they have overcome the privilege. Id.

The level of proof that the Government must offer to overcome the privilege depends on whether the information is confidential-that is, whether it was “acquired by the journalist through a promise of confidentiality.” Id. at 307. If the information is not confidential, the privilege is overcome by demonstrating that “the materials at issue are of likely relevance to a significant issue in the case, and are not reasonably obtainable from other available sources.” Gonzales, 194 F.3d at 35-36. The showing required to obtain confidential materials, however, is more demanding in order “to protect the important interests of reporters and the public in preserving the confidentiality of journalists' sources.” In re Petroleum Prods. Antitrust Litig., 680 F.2d 5, 7 (2d Cir. 1982). If the information is confidential, the privilege can be overcome only if the information is “highly material and relevant, necessary or critical to the maintenance of the claim, and not obtainable from other available sources.” Id. (internal citations omitted).

Outcome:
For the foregoing reasons, the Court OVERRULES Petitioners' objections and ADOPTS the Special Master's recommendation.

By December 28, 2023, the Government shall complete the record by filing on the docket: (1) the Special Master's March 14 and 21, 2022 orders, see Gov. Public Opp. at 3 n.2; (2) the parties' April 1, 13, and 20, 2022 briefs filed before the Special Master, see id. at 5 n.3; and (3) the Government filter team's June 9, 2023 opposition to Petitioners' sealed objections.

By January 5, 2024, the Government's filter team shall turn over the Responsive Materials which are not protected by the attorney-client privilege to the Government's investigation team.
In re Search Warrant dated Nov. 5, 2021, 21 Misc. 813 (AT), 21 Misc. 819 (AT), 21 Misc. 825 (AT) (S.D. N.Y. Dec 21, 2023)

Plaintiff's Experts:

Defendant's Experts:

Comments: