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

Filing 31

ORDER: For the foregoing reasons, it is hereby ORDERED that: 1. the Special Master's review shall exclude any documents that clearly and entirely predate January 1, 2018, to the extent that such an exclusion can be applied efficiently; 2. the request of Dmitry Firtash for limited intervention in this matter is granted; 3. the parties' requests to place their letters under seal are denied, provided that: a. counsel for Giuliani, Toensing, Firtash, and the Government shall confer an d jointly propose any redactions on or before September 24, 2021; b. if the parties cannot agree on proposed redactions, each party shall submit that party's proposed redactions; c. the following letters will be filed on the public docket with any redactions approved by the Court: i. Giuliani letters dated 8/27/21, 9/10/21 ii. Toensing letters dated 8/30/21, 9/13/21 (2) iii. Firtash letters dated 8/20/21, 9/1/21 iv. Government letters dated 8/27/21, 9/3/21, 9/14/21 SO ORDERED. (Signed by Judge J. Paul Oetken on 9/16/2021) (ks)

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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

ORDER

J. PAUL OETKEN, United States District Judge:
Two matters are before the Court: first, a request by Rudolph Giuliani and Victoria
Toensing for an order imposing a temporal limitation on the Special Master’s review process;
and second, a request by Dmitry Firtash to intervene in this matter for the purpose of
participating in the Special Master’s review of any privileged materials relating to him.
I.

Temporal Limitation on Special Master Review
On June 9, 2021, this Court appointed the Honorable Barbara S. Jones (Ret.) as Special

Master to “render decisions regarding privilege issues relating to the materials seized in the
execution of certain search warrants” that are the subject of this matter. (Dkt. No. 25.) Giuliani
and Toensing ask the Court to restrict the Special Master’s review to the time periods set forth in
the search warrants: August 1, 2018 to December 31, 2019 for Giuliani; and January 1, 2019 to
December 31, 2019 for Toensing.
The Government has proposed a compromise that significantly limits the scope of the
parties’ dispute: it consents to the Special Master’s excluding from her review any documents
that clearly and entirely predate 2018. The Court approves this compromise and directs the
Special Master to proceed accordingly. The Court concludes that this is a reasonable approach
that is consistent with the law and the rights of the parties.
First, this Court appointed the Special Master for the purposes of reviewing the materials
for privilege, not for responsiveness. While a general exclusion as proposed by the Government
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is appropriate, the imposition of detailed date restrictions or other responsiveness criteria would
risk further delay in the review process.
Second, the warrants themselves do not contemplate that an arm of the Court, rather than
Government investigators, would conduct a review of the warrant materials for responsiveness,
nor is the Court aware of any legal authority mandating such review. To be sure, as the
Government acknowledges, the warrants must be executed according to their terms. But the fact
that the Court has appointed a Special Master for privilege review in this circumstance does not
dictate that such review be expanded to review for responsiveness.
Third, the warrants cover materials “sent, received, posted, created, or otherwise
accessed, established, modified, or deleted during [the time range].” It is entirely possible that a
document “dated” outside the time range may have been “accessed,” “sent,” “modified,” or
“deleted” during the time range. Moreover, the warrants permit review of any of the seized
material “if necessary to evaluate its contents and to locate all data responsive to the warrant.”
See, e.g., United States v. Gatto, 313 F. Supp. 3d 551, 561 (S.D.N.Y. 2018).
Finally, the Court denies Giuliani’s and Toensing’s request to order the Government to
return or destroy any material at this time.
II.

Intervention by Firtash
Dmitry Firtash, who was previously represented by Toensing, has moved through current

new counsel for limited intervention in this matter “to participate in the Special Master’s review
of his privileged materials.” The Government does not object to his intervention. The Court
concludes that intervention by Firtash is warranted for the limited purpose of reviewing
potentially privileged matters relating to him. The Special Master will determine the most

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efficient and appropriate way to allow Firtash to protect his privilege while also recognizing the
limited purpose for which he is intervening.
III.

Sealing Requests
In their letters addressing these matters, Giuliani, Toensing, and Firtash also have

requested that the letters be filed under seal.
In addition to the First Amendment, the common law provides a “right of public access to
judicial documents.” Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 119 (2d Cir. 2006).
The common law right arises from “the need for federal courts, although independent — indeed,
particularly because they are independent — to have a measure of accountability and for the
public to have confidence in the administration of justice.” United States v. Amodeo (“Amodeo
II”), 71 F.3d 1044, 1048 (2d Cir. 1995).
The Second Circuit has established a three-part test for determining whether documents
may be placed under seal. First, a court must determine whether “the documents at issue are
indeed ‘judicial documents’” to which the “presumption of access attaches.” Lugosch, 435 F.3d
at 119. The Second Circuit has defined a “judicial document” broadly — as one that is “relevant
to the performance of the judicial function and useful in the judicial process.” United States v.
Amodeo (“Amodeo I”), 44 F.3d 141, 145 (2d Cir. 1995). Second, the court “must determine the
weight of that presumption,” which is “governed by the role of the material at issue in the
exercise of Article III judicial power and the resultant value of such information to those
monitoring the federal courts.” The weight of the presumption depends on where the material
falls on “a continuum from matters that directly affect an adjudication to matters that come
within a court’s purview solely to insure their irrelevance.” Amodeo II, 71 F.3d at 1049. Finally,
the court must “balance competing considerations,” including “the danger of impairing law

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enforcement or judicial efficiency and the privacy interests of those resisting disclosure,” against
the presumption. Lugosch, 435 F.3d at 120 (internal quotation marks omitted).
With respect to all the parties’ letters on the issues discussed here, it is clear that they are
“judicial documents” entitled to significant presumptive weight in favor of public access. The
letters are relevant to the judicial function and seek specific relief from this Court in its role
overseeing this matter. See, e.g., United States v. Avenatti, No. 19-CR-374, 2021 WL 3168145,
at *6 (S.D.N.Y. July 27, 2021); United States v. Correia, No. 19-CR-725, 2020 WL 6683097, at
*1 (S.D.N.Y. Nov. 12, 2020). The only question is whether there are “competing
considerations” that outweigh the presumption of public access. Neither Giuliani nor Toensing
has made any effort to identify considerations that warrant sealing of the letters, and the Court
does not perceive any, at least as a general matter.
Firtash does suggest competing considerations, citing his privacy interest and contending
that his participation in this matter could prejudice his defense in his unrelated criminal case.
But these arguments are not persuasive. Firtash’s criminal case in the Northern District of
Illinois is public. See United States v. Firtash, No. 13-CR-515 (N.D. Ill.). And Firtash’s former
attorney-client relationship with Toensing — his only apparent connection to this matter — has
been publicly reported, including by Toensing’s counsel. (See Dkt. No. 29.) The Court does not
see how Firtash is significantly prejudiced by the fact that he has taken steps to protect his
privileged materials in a proceeding in which his former lawyer’s materials were seized.
Accordingly, Firtash’s letters from August 20, 2021, when he sought leave to intervene, and
thereafter, and the Government’s and Toensing’s related letters will be unsealed and placed on
the public docket. However, the parties will be given one week to confer regarding appropriate
redactions to any of the letters.

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IV.

Conclusion
For the foregoing reasons, it is hereby ORDERED that:
1. the Special Master’s review shall exclude any documents that clearly and entirely
predate January 1, 2018, to the extent that such an exclusion can be applied
efficiently;
2. the request of Dmitry Firtash for limited intervention in this matter is granted;
3. the parties’ requests to place their letters under seal are denied, provided that:
a. counsel for Giuliani, Toensing, Firtash, and the Government shall confer and
jointly propose any redactions on or before September 24, 2021;
b. if the parties cannot agree on proposed redactions, each party shall submit that
party’s proposed redactions;
c. the following letters will be filed on the public docket with any redactions
approved by the Court:
i. Giuliani letters dated 8/27/21, 9/10/21
ii. Toensing letters dated 8/30/21, 9/13/21 (2)
iii. Firtash letters dated 8/20/21, 9/1/21
iv. Government letters dated 8/27/21, 9/3/21, 9/14/21

SO ORDERED.
Dated: September 16, 2021
New York, New York

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