In Re: In the Matter of Search Warrants Executed on April 28, 2021

Filing 20

ORDER. The Government's request for appointment of a special master is granted. Giuliani's and Toensing's requests for relief are denied. The parties are directed to confer regarding candidates for special master and to submit proposed candidates by June 4, 2021. If the parties are unable to reach agreement on a list of candidates, they shall submit their own proposed candidates. SO ORDERED. (Signed by Judge J. Paul Oetken on 5/28/21) (yv)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
21-MC-425 (JPO)

In re SEARCH WARRANTS
EXECUTED ON APRIL 28, 2021

MEMORANDUM AND ORDER

J. PAUL OETKEN, United States District Judge:
On April 21, 2021, in connection with an ongoing grand jury investigation, this Court
issued a warrant to search premises belonging to Rudolph Giuliani and Giuliani Partners LLC
and to seize and search electronic devices (21 Mag. 4335). That warrant was executed on April
28, 2021. Also on April 28, 2021, the Court issued a warrant to search an electronic device
belonging to Victoria Toensing (21 Mag. 4591), which had been seized pursuant to a warrant
previously issued by a judge of the District of Maryland.
The Government has submitted a letter requesting that the Court appoint a special master
to review the materials seized pursuant to these warrants for potentially privileged documents.
(Dkt. No. 1.) In response, Giuliani and Toensing have filed letters raising concerns about the
searches and making certain requests in connection with them. (Dkt. Nos. 14, 15.) The
Government has filed a reply submission. (Dkt. No. 18.)
For the reasons that follow, the Government’s request to appoint a special master is
granted and Giuliani’s and Toensing’s requests are denied.1

Because the Court finds that oral argument is unnecessary to resolve these issues,
Toensing’s request for oral argument (Dkt. No. 19) is denied.
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I.

Discussion
Before turning to the issue of appointment of a special master, the Court addresses the

issues raised by Giuliani and Toensing.
A.

Return of Warrant Materials

Giuliani and Toensing argue that the materials seized pursuant to the April 2021 warrants
should be returned to them so that they may review them in the first instance for responsiveness
and privilege. In effect, they ask the Court to require the Government to proceed by subpoena
rather than by search warrant.
Guiliani’s and Toensing’s position lacks legal support. The search warrants at issue here
were based on judicial findings of probable cause — supported by detailed affidavits — to
believe that evidence of violations of specified federal offenses would be found at the locations
to be searched. There is no legal requirement for the Government to proceed by subpoena, nor is
there any basis for the subject of an investigation to require it to do so.
Giuliani and Toensing contend that their status as lawyers, including Giuliani’s status as a
lawyer to the former President, makes these searches problematic. To be sure, “a law office
search should be executed with special care to avoid unnecessary intrusion on attorney-client
communications.” National City Trading Corp. v. United States, 635 F.2d 1020, 1026 (2d Cir.
1980). But lawyers are not immune from searches in criminal investigations. Rather, a law
office search “is nevertheless proper if there is reasonable cause to believe that the specific items
sought are located on the property to be searched.” Id.; see also id. (“[A] criminal enterprise
does not exempt itself from a search warrant by conducting its business and keeping its records
in its lawyer’s office.”); United States v. Mittelman, 999 F.2d 440, 445 (9th Cir. 1993) (“Law
offices are not immune from search.”). The searches here were based on probable cause, and it

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is precisely to avoid “unnecessary intrusion on attorney-client communications” that the
Government is seeking appointment of a special master.2
This request is therefore denied.
B.

2019 Warrant Materials

Giuliani and Toensing also seek the “return” of the results from earlier search warrants of
their iCloud and email accounts, which were issued in 2019 pursuant to the Stored
Communications Act, 18 U.S.C. §§ 2701 et seq. With respect to these 2019 warrants, the
Government represents that it has utilized a “filter team” — a separate group of attorneys and
agents who were not part of the investigative team — to review materials for privilege. Only
those materials determined by the filter team to be not potentially privileged have been released
to the investigative team, according to the Government.
The use of a filter team is a common procedure in this District and has been deemed
adequate in numerous cases to protect attorney-client communications. See, e.g., United States
v. Blakstad, No. 19-CR-486 (ER), 2020 WL 5992347, *8 (S.D.N.Y. Oct. 9, 2020); United States
v. Ceglia, No. 12-CR-876 (VSB), 2015 WL 1499194, *1 (S.D.N.Y. March 30, 2015). Indeed, in
the analogous Michael Cohen proceeding in 2018, Judge Kimba Wood, while appointing a
special master to ensure the “perception of fairness,” recognized the appropriateness of the use of
a filter team with respect to certain communications that had been covertly obtained. (In re
Search Warrants Executed on April 9, 2018, No. 18-MJ-3161 (S.D.N.Y.), Dkt. No. 38 at 8; Dkt.

Toensing’s reliance on United States v. Stewart, No. 02 Crim. 395 (JGK), 2002 WL
1300059 (S.D.N.Y. June 11, 2002), is misplaced. In that case, the Government had seized
documents from numerous criminal defense attorneys who were not subjects of the
Government’s investigation and had many cases before the same prosecuting office. Moreover,
the Court appointed a special master in Stewart to address privilege concerns, as the Government
requests here.
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No. 104 at 88.) This Court finds that the filter team process adequately safeguards the attorneyclient privilege and the constitutional rights of the search subjects and their clients. 3
Moreover, the review of the 2019 warrant returns is now largely complete. And any preindictment suppression motion would be premature at this juncture.
Giuliani and Toensing also seek pre-indictment discovery of the Government’s privilege
and responsiveness designations in connection with the 2019 warrants. They cite no legal
authority for this request, and the Court is aware of none. If there is a criminal proceeding, any
defendants will be entitled to discovery under Rule 16. There is no basis for compelling the
Government to produce this information now, during an ongoing grand jury investigation.
Finally, the Court sees no legal basis for Toensing’s request for detailed information
about the filter team review process, at least at the pre-charge phase of this matter.
Accordingly, these requests are denied.
C.

Search Warrant Affidavits

Giuliani requests that the Court unseal the affidavits submitted in support of the 2019 and
2021 warrants so he can challenge their legality. But he is not entitled to a preview of the
Government’s evidence in an ongoing investigation before he has been charged with a crime.
Giuliani cites no precedent — and the Court is aware of no authority — for the
proposition that the Fourth Amendment (or any other constitutional or statutory provision) gives

In challenging the filter team utilized here, Giuliani relies on In re Search Warrant
Issued June 13, 2019, 942 F.3d 159 (4th Cir. 2019). Although the Fourth Circuit in that case
held that the magistrate judge’s authorization of the filter team and protocols were improper
under the circumstances, it did not hold that the Government’s use of a filter team is
categorically inappropriate. In any event, that decision is not binding on this Court, and to the
extent it suggests that the use of a filter team by a federal prosecuting office may violate the
constitutional separation of powers, this Court respectfully disagrees.
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a person who has not been charged a right to review a search warrant affidavit during an ongoing
investigation. See, e.g., Matter of EyeCare Physicians of Am., 100 F.3d 514, 517 (7th Cir. 1996).
Assuming that the search warrant affidavits are “judicial documents” to which the First
Amendment and common law right of access applies, the Court finds that the presumption of
access is plainly outweighed by the need to protect a grand jury investigation that is ongoing.
“Among other things, if matters relating to grand jury proceedings became public, prospective
witnesses may be deterred from testifying, those who do testify may be less likely to do so
truthfully, targets of investigations may flee, and persons who are the subject of an ultimately
meritless investigation may face public embarrassment.” United States v. Haller, 837 F.2d 84,
87-88 (2d Cir. 1988) (citation omitted).
If Giuliani is charged with a crime, of course, he will be entitled to production of the
search warrant affidavits as part of discovery pursuant to Federal Rule of Criminal Procedure 16.
He will also be able to file motions challenging the warrants under Rule 12. But such disclosure
is premature at the present stage.
This request is therefore denied.
D.

Return of Property

Toensing asks the Court to order the Government to return its copy of her cellphone,
which was seized in April 2021, and its copy of her iCloud and email accounts subject to the
2019 warrant. The Government has already returned Toensing’s cellphone, and she apparently
has access to her iCloud and email accounts. She appears to be objecting, therefore, to the
Government’s retaining a copy of this information. Again, however, these materials were
obtained pursuant to search warrants, based on probable cause, and the Government’s

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investigation is ongoing. There is nothing improper or unlawful about the Government’s
retention of them.
Rule 41(g) permits a person to move for the return of her property where, among other
things, the seizure was illegal or the government no longer has a legitimate interest in the
property. See Lavin v. United States, 299 F.3d 123, 128 (2d Cir. 2002); United States v. Van
Cauwenberghe, 827 F.2d 424, 433 (9th Cir. 1987). Here, the Government’s legitimate interest in
the property is established by its ongoing investigation, and Toensing has not shown that the
seizure was illegal. Nor has she established irreparable harm from the Government’s retention of
the property in light of the safeguards (discussed above) to protect attorney-client privilege. 4
In the event of a criminal proceeding, Toensing will have an opportunity to litigate any
pertinent privilege and suppression issues.
This request is denied.
E.

Special Master

Finally, the Court turns to the Government’s request to appoint a special master to
conduct review for privilege. In the analogous Cohen matter, Judge Wood appointed a special
master to ensure the “perception of fairness.” The Government proposes the same procedure
here in light of the parallels to this matter. Aside from the issues addressed above, Giuliani and
Toensing do not appear to dispute that the appointment of a special master is appropriate.

The two cases cited by Toensing fail to support her argument. In United States v.
Rayburn House Office Bldg., 497 F.3d 654 (D.C. Cir. 2007), the court addressed the very
different protection afforded by the Constitution’s Speech or Debate Clause, and that decision
has not been extended to the context of attorney-client privilege. And in United States v. Search
of Law Office, 341 F.3d 404, 406 (5th Cir. 2003), the court held that a lawyer had to failed to
establish irreparable harm by citing attorney-client privilege in challenging a search preindictment, reversing the district court’s return of property and suppression under Rule 41.
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The Court agrees that the appointment of a special master is warranted here to ensure the
perception of fairness. The special master will expeditiously conduct a filter review of the April
2021 warrant materials for potentially privileged documents, and that review can be informed by
Giuliani’s and Toensing’s parallel review of the same materials. The Government’s
investigative team will thereafter conduct a responsiveness review of the released materials.
II.

Conclusion
For the foregoing reasons, the Government’s request for appointment of a special master

is granted. Giuliani’s and Toensing’s requests for relief are denied.
The parties are directed to confer regarding candidates for special master and to submit
proposed candidates by June 4, 2021. If the parties are unable to reach agreement on a list of
candidates, they shall submit their own proposed candidates.
SO ORDERED.
Dated: May 28, 2021
New York, New York

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