In re: Search Warrant dated November 5, 2021

Filing 164

ORDER for (47 in 1:21-mc-00819-AT) Special Master's Report filed by Barbara S. Jones, (52 in 1:21-mc-00825-AT) Special Master's Report filed by Barbara S. Jones, (118 in 1:21-mc-00813-AT) Special Master's Report filed by Barbara S. Jones. 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 Ma ster'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 teams June 9, 2023 opposition to Petit ioners' 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. SO ORDERED. (Signed by Judge Analisa Torres on 12/21/2023) (jca)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: 12/21/2023

In re Search Warrant dated November 5, 2021,

21 Misc. 813 (AT)

In re Search Warrant dated November 3, 2021

21 Misc. 819 (AT)

In re Search Warrant dated November 3, 2021,

21 Misc. 825 (AT)

ORDER
ANALISA TORRES, District Judge:
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

1

All ECF citations are to the docket in 21 Misc. 813 unless otherwise noted.

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 Kurlander, two individuals not employed
by Project Veritas, discovered that the Victim had stored items—including a journal—in a
Florida house where Harris was temporarily residing. Gov. Public Opp. at 4. The Government
claims that 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

The Government has been “circumspect in its public statements to the Court regarding the relevant factual
background and its investigation.” Report at 3. Petitioners state that the property belonged to Ashley Biden, the
daughter of then-presidential candidate Joseph R. Biden, Jr. Pet’r Public Obj. at 4.
2

2

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
3

The affidavits were provided on an ex parte basis to the Special Master and to the Court. See Gov. Public Opp. at
2 n.1; ECF No. 42.

3

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

4

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 attorneyclient 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

Although some of Petitioners’ arguments challenged the validity of the search warrants, the Court declined to
consider that issue because it “is not before the Court.” ECF No. 48 at 2.
4

5

In an interim March 7, 2022 update, the Special Master notified the Court that the Government had provided
materials from fifteen of the forty-seven seized electronic devices. ECF No. 61 at 1. Of the fifteen devices, the
Special Master determined that there were no responsive documents on ten and released materials from the other
five to the filter team. Id. at 2. As to the thirty-two other devices, the Government was either unable to access the
device or had determined that the device “did not contain data from the time periods set forth in the search
warrants.” Id. at 1–2.

5

ECF No. 118-1 (spreadsheet documenting the Special Master’s review).
LEGAL STANDARD
The Court reviews de novo all objections to conclusions of law and findings of fact made
or recommended by the Special Master. Fed. R. Civ. P. 53(f)(3)–(4). A ruling on a procedural
matter is reviewed for abuse of discretion. Id. R. 53(f)(5).
DISCUSSION
I.

The Reporter’s Privilege

Petitioners contend that, as journalists, they are not required to turn over the Responsive
Materials to the Government. The Special Master rejected this argument. After sorting each
document into one of eight groups, the Special Master held that the privilege afforded to
reporters does not apply to four groups of documents, and that the Government demonstrated a
need sufficient to overcome the privilege as to the other four. Report at 13–17; see ECF No.
118-1 (spreadsheet documenting the Special Master’s review). Petitioners now argue that the
Special Master both used the wrong legal standard to evaluate their claim of the journalist’s
privilege and misapplied the legal standard that she did use.
A. Legal Standard
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

The Second Circuit has declined to decide whether the reporter’s privilege arises from the First Amendment or
federal common law, stating that it only would need to answer the question if “Congress legislates to modify the
privilege or do away with it.” Gonzales, 194 F.3d at 35 n.6. The Court, therefore, does not address that issue. The
Circuit’s standard is informed by First Amendment principles. See, e.g., von Bulow ex rel. Auersperg v. von Bulow,
811 F.2d 136, 142 (2d Cir. 1987) (“[T]he process of newsgathering is a protected right under the First Amendment
. . . which results in the journalist’s privilege.”).
6

6

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).
The Special Master analyzed Petitioners’ assertion of the reporter’s privilege using these
tests for confidential and nonconfidential information. Report at 8–9. Petitioners argue that
these are the wrong legal standards to apply for three reasons.
First, Petitioners contend that these tests insufficiently protect their First Amendment

7

rights, and argue that the Special Master should have deployed a stricter test. Pet’r Public Obj. at
14–16, 20. Petitioners are incorrect. In Branzburg v. Hayes, the Supreme Court held that the
First Amendment does not provide journalists with a privilege against testifying before a grand
jury in response to a subpoena. 408 U.S. 665, 682, 684 (1972). Reporters may still refuse to
turn over documents following Branzburg, but if they do so, courts must evaluate their assertion
of the journalist’s privilege under the binding tests articulated by the Second Circuit.7 Petroleum
Prods., 680 F.2d at 8, 9 n.12.
Petitioners do not explain how their proposed standard differs from the legal framework
outlined by the Circuit. Petitioners contend that the Special Master “invoke[d] a weak relevancy
standard” and disclosed documents upon “hypothetically find[ing] relevance—indeed, any
imaginable relevance—in the information.” Pet’r Public Obj. at 16. But, this argument
challenges the Special Master’s application of the framework, not the framework itself.
Second, Petitioners contend that, in addition to using the Second Circuit’s tests, the
Special Master should have conducted a “closer First Amendment inquiry.” Id. at 20.
Petitioners do not specify what such an inquiry entails, but imply that it requires the Court to
assess the validity of the search warrants and whether “the Fourth Amendment requirements
were actually met.” See id. at 21–22 (emphasis added).
Petitioners’ argument is inconsistent with Supreme Court precedent. In Zurcher v.
Stanford Daily, a district court held that, because of the First Amendment interests at stake, a
search of a college newspaper’s premises was impermissible unless the Government could show
that a restraining order would be futile and that materials would otherwise be destroyed. 436

Indeed, the Circuit’s tests for the reporter’s privilege incorporate the limits set forth by the Branzburg concurrence,
which notes that a reporter who is “called upon to give information bearing only a remote and tenuous relationship
to the subject of the investigation” or “without a legitimate need of law enforcement” may still assert a claim to
privilege. 408 U.S. at 710 (Powell, J., concurring).
7

8

U.S. 547, 552 (1978). The Supreme Court rejected the lower court’s holding, finding that if a
court carefully applies the Fourth Amendment’s warrant requirements, that would “afford
sufficient protection” against potential First Amendment harms. Id. at 565. This approach
obligates courts to “focus searchingly” on the First Amendment question and police the
requirements of specificity and reasonableness when determining probable cause under the
Fourth Amendment. Id. at 565–66. It does not, however, create a higher standard or a separate
procedure to issue a warrant for reporting-related materials. See id. at 569–70 (Powell, J.,
concurring) (“[T]he usual procedures contemplated by the Fourth Amendment do indeed apply
to the press, as to every other person.”); see also Branzburg, 408 U.S. at 682 (“The First
Amendment does not invalidate every incidental burdening of the press that may result from the
enforcement of civil or criminal statutes of general applicability.”).8
The protections set forth in Zurcher were observed here: the search warrants, which
specified not only locations that the Government could search but also items that the
Government could seize, were authorized by a magistrate judge after the submission of detailed
affidavits demonstrating probable cause.9 Additional Fourth Amendment challenges are,
therefore, “premature at this juncture.” In re Search Warrants Executed on Apr. 28, 2021, No.
Branzburg states that “[o]fficial harassment of the press undertaken not for purposes of law enforcement but to
disrupt a reporter’s relationship with his news sources would have no justification” and may raise independent First
Amendment concerns. 408 U.S. at 707–08; see United States v. Sterling, 724 F.3d 482, 492 (4th Cir. 2013). Indeed,
the Supreme Court has left open the possibility of enjoining a criminal prosecution if the litigant makes a significant
showing of “bad faith and harassment.” Younger v. Harris, 401 U.S. 37, 53–54 (1971). Petitioners allege that the
Government has acted in bad faith by violating the Privacy Protection Act and internal Department of Justice
regulations, see Pet’r Public Reply at 7 n.4, ECF No. 152, and by discriminating against them based on viewpoint,
see Pet’r Public Obj. at 16. Petitioners’ challenges to the warrants are premature, insufficient to demonstrate bad
faith, and rest on speculation—not evidence. Because Petitioners have not established actual doubts about the
integrity or intentions of the Government, the Court shall not entertain independent relief pursuant to the First
Amendment.
8

Petitioners, who have been able to “litigate the [Government’s] entitlement to the material it seeks before it is
turned over,” have received more process than required by Zurcher, which held that “presumptively protected
materials are not necessarily immune from seizure under warrant for use at a criminal trial.” 436 U.S. at 566–67. At
a later stage, Petitioners may raise any Fourth and First Amendment challenges to a grand jury indictment that may
arise from the Government’s investigation.
9

9

21 Misc. 425, 2021 WL 2188150, at *2 (S.D.N.Y. May 28, 2021). The Court adheres to its prior
decision that “the validity of the search warrants . . . is not before this Court.” ECF No. 48 at 2.
Third, Petitioners contend that, pursuant to the Supreme Court’s decision in Bartnicki v.
Vopper, 532 U.S. 514 (2001), the Special Master should have only required the disclosure of
documents “that evidence its journalists’ participation in the theft of information not already in
the possession of” Harris and Kurlander. Pet’r Public Obj. at 14. In Bartnicki, the Supreme
Court held that the First Amendment protects the publication of information by a “law-abiding
possessor of information,” even if the publisher received the information from a source who
obtained it unlawfully. 532 U.S. 514, 529 (2001); see Amicus Br. at 3, ECF No. 143. Here, the
Government is investigating whether Petitioners participated in the theft of the Victim’s journal
and the other items. Gov. Public Opp. at 10. Bartnicki does not protect such conduct. Dem.
Nat’l Comm. v. Russian Fed’n, 392 F. Supp. 3d 410, 431 (S.D.N.Y. 2019) (noting that Bartnicki
is premised on the “significant legal distinction between stealing documents and disclosing
documents that someone else had stolen previously”); Amicus Br. at 4.10
Petitioners’ objections to the legal standard applied by the Special Master are, therefore,
without merit.
B. The Special Master’s Application of the Privilege Test
Petitioners next object to how the Special Master applied the Circuit’s legal framework
on two grounds. First, they contend that the Special Master deemed information that should
have been confidential as nonconfidential, lowering the Government’s burden to overcome the

The Court rejects Petitioners’ argument that Bartnicki is an “outright barrier to the seizure of newsgathering
materials.” Pet’r Public Obj. at 14. The Supreme Court in Bartnicki did not create an independent privilege
preventing the seizure of materials responsive to a warrant. Petitioners also contend that the Special Master was
required to assess the underlying factual record to determine whether Petitioners were actually involved in the theft.
See id. at 17, 19. This is another attempt to challenge the scope and validity of the search warrants. For the reasons
stated above, that issue is not before this Court.
10

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reporter’s privilege. Second, they argue that the Government did not meet its burden to
overcome the privilege.
1. Confidentiality
Petitioners argue that they acquired “the relevant materials and related information”
under an agreement of confidentiality and that the Report erred by applying the Second Circuit’s
less stringent test for nonconfidential materials. Pet’r Public Obj. at 27. The Court disagrees.
Confidential information is information “acquired by the journalist through a promise of
confidentiality.” Chevron Corp., 629 F.3d at 307. Documents that would reveal such
information are also protected as confidential. See Petroleum Prods., 680 F.2d at 7 (upholding
reporter’s privilege not to provide “documents which contained the names of confidential
sources”); see also United States v. Cuthbertson, 630 F.2d 139, 147 (3d Cir. 1980) (“The
compelled production of a reporter’s resource materials can constitute a significant intrusion into
the newsgathering and editorial processes.”).
However, a source who initially sought confidentiality may disclose to the public her
identity and the information that she secretly provided. In that unusual case, the reporter is no
longer safeguarding secret information, and the source does not expect confidentiality—so there
is “no issue of betrayal of a promised confidence.” Chevron Corp., 629 F.3d at 307. This public
information is, therefore, not entitled to the Second Circuit’s heightened protection for
confidential materials. See Gonzales, 194 F.3d at 35 (imposing a higher burden specifically to
“preserv[e]” and “safeguard[]” non-public information); Schiller v. City of New York, 245 F.R.D.
112, 120 n.2 (S.D.N.Y. 2007) (“[W]here the source has no expectation of confidentiality, [the
heightened] consideration does not come into play.”); see also United States v. Criden, 633 F.2d
346, 358 (3d Cir. 1980) (“[D]efendants probably should be required to prove less to obtain the

11

reporter’s version of a conversation already voluntarily disclosed by the self-confessed source
than to obtain the identity of the source itself.”).
Here, Petitioners promised to keep the identities of Harris and Kurlander confidential.
But, Harris and Kurlander pleaded guilty, and revealed to the public that they were the ones who
provided the Victim’s journal and additional items to Project Veritas. Petitioners, therefore, are
not “protecting the identity of any source.” United States v. Treacy, 639 F.3d 32, 42 (2d Cir.
2011).
Petitioners argue that the public disclosure of the identity of a confidential source “does
not in one fell swoop render all of the confidential information provided by that source, nonconfidential.” Pet’r Public Reply at 21, ECF No. 152. Petitioners, however, fail to identify any
information provided under a promise of confidentiality that remains confidential. Petitioners
speculate that

.11
Petitioners also contend that internal Project Veritas documents related to the confidential
sources are confidential. This argument also fails. Such documents are only protected as
confidential when disclosing them would reveal the identity of the sources or the confidential
information that the sources provided. See Gonzales, 194 F.3d at 36 (“[W]here the protection of
confidential sources is not involved, the nature of the press interest protected by the privilege is
narrower.”); Petroleum Prods., 680 F.2d at 7. Were the confidential sources’ names not public,
the stringent Petroleum Products test would apply not only to their names, but to any documents
The Government’s filter team filed its brief under seal directly with the Court. The filter team is directed to file its
brief on the docket.
11

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and communications that would identify them. Here, because Harris and Kurlander have
publicly pleaded guilty, that test does not apply. See United States v. Cutler, 6 F.3d 67, 73–75
(2d Cir. 1993) (ordering disclosure of reporters’ unpublished notes as to public statements by the
defendant but barring disclosure of unpublished notes as to statements by anonymous
government officials). The Court concludes, therefore, that the internal Project Veritas
documents are not confidential.
Petitioners next argue that because the reporter, not the source, controls the privilege, it
follows that Harris and Kurlander’s public admissions of guilt have no bearing on whether the
information is confidential. Petitioners conflate two distinct issues: the questions of (1) who may
assert the privilege, and (2) whether the information is confidential. It is true that the reporter is
the holder of the privilege, see N.Y. Times Co., 459 F.3d at 167–68, and only she can waive it,
see In re Grand Jury Proceedings, 219 F.3d 175, 182 (2d Cir. 2000); In re von Bulow, 828 F.2d
94, 100 (2d Cir. 1987). But, the Court does not reach the question of whether Petitioners waived
the privilege. See Report at 16 n.10 (also declining to reach the Government’s argument
regarding waiver). Whether information is confidential turns on whether the information sought
is currently public through the source’s own actions. The Court does not blind itself to
information already in the public record. Therefore, it must take into account Harris and
Kurlander’s decision to identify themselves. See Treacy, 639 F.3d at 42; see Schiller v. City of
New York, 245 F.R.D. 112, 120 n.2 (S.D.N.Y. 2007) (“[W]here the source has no expectation of
confidentiality, [the heightened] consideration does not come into play.”). Thus, although Harris
and Kurlander are not the privilege-holders, the fact that their identities are no longer
confidential reduces the showing required to overcome the privilege.
Finally, the Court rejects Petitioners’ contention that finding the documents non-

13

confidential “eviscerates” the reporter’s privilege. Pet’r Public Obj. at 25, 29. The reporter’s
privilege protects all materials gathered in a journalistic investigation in order to avoid impairing
the press from carrying out its duties. Gonzales, 194 F.3d at 35. But, confidential materials
receive an additional layer of protection because “[f]orcing the press to breach a promise of
confidentiality threatens its ability in the future to perform its public function to acquire
information for publication.” Chevron Corp., 629 F.3d at 307. Here, Petitioners are not being
forced to break a promise of confidentiality. The Court concludes, therefore, that the Responsive
Materials are not confidential, and the Special Master was not required to apply the Second
Circuit’s heightened test for confidential materials.12
2. Application
To overcome the reporter’s privilege, a party seeking nonconfidential information from a
reporter must demonstrate that the materials (1) are of likely relevance to a significant issue in
the case, and (2) are not reasonably obtainable from other available sources. Gonzales, 194 F.3d
at 36. The Court concludes that the Government has met its burden.
a. Relevance
Petitioners advance two general objections regarding relevance. First, Petitioners
contend that the Special Master set too low of a bar for determining whether the Responsive
Materials were likely relevant to the case. See Pet’r Public Obj. at 33–35. Petitioners are
incorrect.
The Government’s investigation is focused on Petitioners’ actions.13 The Responsive

The Court shall not reach Petitioners’ objections to the Special Master’s finding that four groups of documents
were not gathered in a journalistic investigation. As described below, the Court holds that even if Petitioners could
invoke the reporter’s privilege as to all of the Responsive Materials, the Government has overcome the privilege.
12

This alone distinguishes Petitioners’ case from the majority of criminal cases involving the reporter’s privilege,
where the Government seeks to pry information from reporters about their sources’ alleged criminal conduct. See,
e.g., Branzburg, 408 U.S. at 667–79; N.Y. Times Co., 459 F.3d at 163; Sterling, 724 F.3d at 488–92.
13

14

Materials “go[] to the heart of the [potential] prosecution,” United States v. Sterling, 724 F.3d
482, 499 (4th Cir. 2013), because they will help the Government and any grand jury to determine
“whether crimes have been committed and who committed them,” Branzburg, 408 U.S. at 691.
The reporter’s privilege does not prevent the Government from investigating whether a journalist
has committed a crime. See United States v. Sanusi, 813 F. Supp. 149, 156 (E.D.N.Y. 1992)
(“[T]he court must be confident that the person asserting the privilege does not do so as a means
of justifying otherwise illegal conduct.”); see also Cutler, 6 F.3d at 73 (“Crimes and torts
committed in news gathering are not protected by the First Amendment.” (cleaned up)). Of
course, the Government cannot use a “bland assertion that a journalist has violated the law” to
obtain otherwise privileged materials. Pet’r Public Obj. at 22. Here, however, the Government’s
claims have been vetted through two independent layers of review. First, a magistrate judge
scrutinized the Government’s proffered affidavits and found probable cause to believe that the
seized devices contain evidence of crimes. Second, the Special Master—an independent official
and retired federal judge—reviewed the materials to determine whether they were, in fact,
responsive to the warrants and relevant to the Government’s case. Petitioners offer no reason to
doubt their impartial determinations.14
The Second Circuit’s decision in New York Times Co. v. Gonzales is instructive. 459
F.3d 160 (2d Cir. 2006). In that case, a leaker alerted two New York Times reporters to an
impending asset freeze on nonprofit organizations suspected of supporting terrorism. Id. at 163.
The Times journalists, upon receiving the tip, contacted the organizations in advance of the asset

The Court rejects Petitioners’ argument that the Special Master was required to enumerate the elements of each
offense and explain why each document was likely relevant. Pet’r Public Obj. at 33. That would merely duplicate
the Special Master’s review to determine whether documents were responsive to the seven enumerated categories in
the search warrants. Moreover, the Special Master’s responsiveness review was far from pro forma, marking
documents from ten of the fifteen devices as non-responsive and, upon Petitioners’ objections, marking an additional
sixty-one documents as non-responsive.
14

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freeze and, by forewarning them, may have frustrated the freeze. Id. Through a grand jury
proceeding, the Government sought to obtain phone records from the Times in order to identify
the leaker. Id. at 164–65. The Second Circuit held that the reporter’s privilege did not bar the
Government from obtaining the information because, among other things, the journalists “were
not passive collectors of information whose evidence is a convenient means for the government
to identify” the leaker. Id. at 170. Rather, the “reporters’ actions [were] central to (and probably
caused) the grand jury’s investigation,” and “[t]heir evidence as to the relationship of their
source(s) and the leaks themselves to the informing of the targets [was] critical to the []
investigation.” Id.
Like the New York Times journalists, Petitioners are not “passive collectors of
information whose evidence is a convenient means for the [G]overnment” to further its
investigation. Id. Indeed, their actions are not only “central to” the Government’s investigation,
id., but are the subject of the investigation itself.
Second, Petitioners contend that several categories of documents are “highly unlikely to
be relevant” because they occurred “after the decision was made not to publish the [Victim’s]
diary story” and “have nothing to do with . . . whether Project Veritas knew the [Victim’s]
materials were stolen.” Pet’r Public Obj. at 34. Petitioners’ speculative argument is contradicted
by the documents, which the Court has reviewed and finds to be relevant as to whether
Petitioners (1) knew that the journal was stolen, and (2) played a role in the theft and
transportation of the materials. See United States v. Abu-Jihaad, 630 F.3d 102, 132 (2d Cir.
2010) (“[E]vidence need not be sufficient by itself to prove a fact in issue . . . [and] is relevant if
it has any tendency to make the existence of any fact that is of consequence to the determination
of the action more probable or less probable than it would be without the evidence.” (cleaned

16

up)).15
b. Obtainability
Petitioners argue that the Responsive Materials are obtainable from other sources already
within the Government’s possession. See Pet’r Public Obj. at 38–39. The Court disagrees.
Whether evidence is on Petitioners’ devices is relevant to Petitioners’ knowledge and intent.
Moreover, as the Government’s filter team discusses in its sealed opposition papers, timestamps
and even message threads vary between devices. Gov. Sealed Opp. at 4.
Accordingly, Petitioners’ objections regarding the reporter’s privilege are OVERRULED.
II.

The Attorney-Client Privilege

Petitioners object to the Special Master’s findings that (1) certain documents are not
protected by the attorney-client privilege, and that (2) ten documents, although privileged, fall
within the crime-fraud exception. Report at 17–18.
A. Legal Standard
The attorney-client privilege protects “confidential communications between client and
counsel made for the purpose of obtaining or providing legal assistance.” In re Cnty. of Erie,
473 F.3d 413, 418 (2d Cir. 2007). The privilege “encourages full and frank communications
between a client and counsel, which in turn promotes an understanding of and compliance with
the law and the administration of justice.” Spectrum Dynamics Med. Ltd. v. Gen. Elec. Co., No.
18 Civ. 11386, 2021 WL 3524081, at *2 (S.D.N.Y. Aug, 10, 2021). The privilege is narrowly
construed because it “renders relevant information undiscoverable.” Erie, 473 F.3d at 418. The
party invoking the privilege “must show (1) a communication between client and counsel that (2)
was intended to be and was in fact kept confidential, and (3) was made for the purpose of
Petitioners’ relevance objections filed under seal are duplicative of the publicly filed objections addressed by the
Court. The Court has reviewed the documents and finds that Petitioners’ objections lack merit.
15

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obtaining or providing legal advice.” Id. at 419 (citation omitted).
“Fundamentally, legal advice involves the interpretation and application of legal
principles to guide future conduct or to assess past conduct.” Id. If the predominant purpose of
the communication is legal advice, the communication is privileged in its entirety even if it
contains supplementary nonlegal advice. Id. at 420. By contrast, if the legal advice is
“incidental to the nonlegal advice that is the predominant purpose of the communication,” then
disclosure should be ordered with any legal advice redacted. Id. at 421 n.8.
To determine the predominant purpose of the communication, a court must assess the
communication “dynamically and in light of the advice being sought or rendered, as well as the
relationship between advice that can be rendered only by consulting the legal authorities and
advice that can be given by a non-lawyer.” Id. at 420–21. Because a company’s in-house
counsel “mix[es] legal and business functions,” Bank Brussells Lambert v. Credit Lyonnais
(Suisse), 220 F. Supp. 2d 283, 286 (S.D.N.Y. 2002), “communications between a corporation’s
employees and its in-house counsel . . . must be scrutinized carefully.” Spectrum, 2021 WL
3524081, at *2. Requests for legal advice can be implicit if “an attorney is copied on the
communications and the communications implicate specific legal issues.” Greater N.Y. Taxi
Ass’n v. City of New York, No. 13 Civ. 3089, 2017 WL 4012051, at *12 (S.D.N.Y. Sept. 11,
2017). But, “[m]erely copying a lawyer on a communication does not render it privileged.”
Hayden v. Int’l Bus. Machs. Corp., No. 21 Civ. 2485, 2023 WL 4622914, at *4 (S.D.N.Y. July
14, 2023) (citation omitted).
Communications that would otherwise be protected by the attorney-client privilege are
not protected “if they relate to client communications in furtherance of contemplated or ongoing
criminal or fraudulent conduct.” In re Grand Jury Subpoena Duces Tecum Dated September 15,

18

1983, 731 F.2d 1032, 1038 (2d Cir. 1984). “[A]dvice in furtherance of such goals is socially
perverse, and the client’s communications seeking such advice are not worthy of protection.” Id.
A party seeking to overcome the attorney-client privilege must show probable cause that (1) a
crime or fraud has been committed, and (2) the communications were in furtherance thereof. In
re John Doe, Inc., 13 F.3d 633, 637 (2d Cir. 1994) (citation omitted). The crime-fraud exception
applies to communications “intended in some way to facilitate or to conceal the criminal
activity.” In re Richard Roe, Inc., 68 F.3d 38, 40 (2d Cir. 1995). The communication must
“itself [be] in furtherance of the crime or fraud,” and not only provide evidence of a crime or
fraud. Id. The Court must find a “purposeful nexus” between the attorney-client communication
and the crime or fraud. Id. (citation omitted); see In re Omnicom Grp., Inc. Sec. Litig., No. 02
Civ. 4483, 2007 WL 2376170, at *11 & n.13 (S.D.N.Y. Aug. 10, 2007) (assuming that the
purposeful-nexus test is less rigorous than a “preponderance of the evidence” standard). When a
topic of an attorney’s representation is found to be a crime or fraud, communications with the
attorney as to that topic are “necessarily ‘in furtherance of’ [the] illegal conduct.” Amusement
Indus., Inc. v. Stern, 293 F.R.D. 420, 440 (S.D.N.Y. 2013); see In re Gen. Motors LLC, No. 14
Misc. 2543, 2015 WL 7574460, at *7 (S.D.N.Y. Nov. 25, 2015) (citing United States v. Ceglia,
No. 12 Cr. 876, 2015 WL 1499194, at *4–9 (S.D.N.Y. Mar. 30, 2015)).
B. Applicability of the Attorney-Client Privilege
The Court shall first address Petitioners’ objections to the Special Master finding that
eleven documents are not subject to the attorney-client privilege.16 Report at 18; ECF No. 118-1.
The Government, in its sealed opposition papers, states that two of the documents may be
redacted. See Gov. Sealed Opp. at 22. For the nine remaining documents, Petitioners first argue
Petitioners do not object to the Special Master’s findings that other documents are not protected by the attorneyclient privilege. See Pet’r Sealed Obj. at 37; Pet’r Sealed Reply at 13, ECF No. 155.
16

19

that the Special Master applied the wrong legal standard and protected only communications that
contain actual legal advice, as opposed to communications made with the intent to obtain or
provide legal advice. Pet’r Public Obj. at 54. Petitioners’ argument relies on a shorthand
notation utilized by the Special Master on the spreadsheet memorializing the review, id., but the
Report itself sets forth and applies the correct legal standard. Report at 17–18.
Second, Petitioners contend that Project Veritas’ legal counsel was advising the
journalists on the legal issue of newsworthiness and that any facts communicated to the legal
counsel were to aid this determination. Pet’r Public Obj. at 55. The Court disagrees. Petitioners
concede that the documents at issue do not include explicit requests for legal advice. Pet’r
Public Reply at 33–34. And, the Court cannot conclude that Petitioners’ communication of facts
to Project Veritas’ chief legal officer (the “CLO”) constituted an implicit request for legal advice
regarding newsworthiness. The CLO was involved in both business and legal decisions. Gov.
Sealed Opp. at 23; see Pet’r Sealed Reply at 12–17, ECF No. 155 (citing cases analyzing the dual
role of in-house counsel). The documents do not indicate that the “predominant purpose” of the
CLO’s involvement was driven by legal concerns about newsworthiness. Erie, 473 F.3d at 420;
see Scott v. Chipotle Mexican Grill, Inc., 94 F. Supp. 3d 585, 596 (S.D.N.Y. 2015) (rejecting the
privilege where there was “virtually no contemporaneous documentation supporting the view
that” counsel was informed in order to provide legal advice); cf. Hayden, 2023 WL 4622914, at
*6 (rejecting the privilege where there was no indication that the facts “served as a basis for any
conversation that the plaintiff might have had with counsel” (cleaned up)).
Petitioners also argue that certain communications were related to their efforts to
authenticate the documents and are, therefore, protected. But, the documents indicate that
questions regarding authentication were not analyzed as a legal issue, and, indeed, a non-lawyer

20

worked with the CLO on those determinations. See Urban Box Office Network, Inc. v. Interfase
Mgrs., L.P., 2006 WL 1004472, at *5 (S.D.N.Y. Apr. 18, 2006) (where there is “simultaneous
review by legal and non-legal personnel, it cannot be said that the primary purpose of the
[communication] is to secure legal advice” (citation omitted)); Doe v. Zucker, No. 17 Civ. 1005,
2021 WL 6128429, at *5 (N.D.N.Y. Sept. 3, 2021) (holding that requests for “practical,” nonlegal guidance are not privileged).
Petitioners’ additional objections largely repeat the general objections addressed above.
Where they do not, the Court has reviewed the documents and agrees with the Special Master
that the documents do not reflect requests for legal advice and, therefore, are not protected by the
attorney-client privilege.
C. Applicability of the Crime-Fraud Exception
The Court shall next address the Special Master’s decision that the crime-fraud exception
vitiates the attorney-client privilege as to ten documents. Report at 18–19. Judge Cave
determined that probable cause exists for the Conspiracy. Cf. United States v. Tucker, 254 F.
Supp. 3d 620, 624 (S.D.N.Y. 2017) (deferring to a prior determination of probable cause; there, a
grand jury indictment); United States v. Sabbeth, 34 F. Supp. 2d 144, 150–51 (E.D.N.Y. 1999)
(same). The primary question before the Special Master, and now the Court, is whether a
“purposeful nexus” exists between each document and the Conspiracy. Roe, 68 F.3d at 40.
Petitioners first argue that the Conspiracy was completed on September 17, 2020, and
that the seven documents created after that date cannot further the Conspiracy. Pet’r Public Obj.
at 47–48. The Court has carefully reviewed the search warrants and the affidavits on which they
are based, and concludes that the documents at issue—the latest of which is dated October 28,
2020—fall squarely within the timeframe of the Conspiracy.

21

Petitioners then raise objections on a document-by-document basis. Documents intended
to “conceal” criminal activity are not protected by the privilege. Roe, 68 F.3d at 40. Nor are
documents that “indicate[] an intent to create or present misleading or false evidence.” Gen.
Motors, 2015 WL 7574460, at *6–7 (citation omitted). Nine of the ten documents fall into one
of these two categories.
Nine documents17 involve communications between Meads and the CLO about
contractual agreements between Project Veritas, Kurlander, and Harris. There is probable cause
to believe that these documents furthered the Conspiracy.

The tenth document, Document 1B45_00020106, also served to further the Conspiracy.

17

Specifically, documents 1B45_00009505, 1B45_00012043, 1B45_00013141, 1B45_00014213, 1B45_00017182,
1B45_00017477, 1B45_00018084, 1B45_00019813, and 1B45_00021841.

22

Petitioners’ objections to the Special Master’s rulings regarding the attorney-client
privilege are, therefore, OVERRULED.18
CONCLUSION
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.
SO ORDERED.
Dated: December 21, 2023
New York, New York

18

Petitioners separately move for the return of their property pursuant to Federal Rule of Criminal Procedure 41(g).
ECF No. 70. Petitioners’ motion is another attempt to challenge the validity of the judicially authorized search
warrants, see id. at 3, and, therefore, is not properly before this Court. The Government has returned the devices on
which there were no responsive materials. ECF No. 74 at 2. For the remaining devices, the Government’s
investigation is not complete, and “the [G]overnment’s need for the property as evidence continues.” United States
v. King, No. 21 Cr. 255, 2022 WL 875383, at *5 (S.D.N.Y. Mar. 24, 2022) (quoting Podlog v. United States, No. S2
92 Cr. 374, 1996 WL 403029, at *1 (S.D.N.Y. July 18, 1996)). Accordingly, Petitioners’ motion is DENIED.

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