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  • James O'Keefe - Special Master - Order

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    The document discusses three motions related to search warrants executed by the FBI on current and former Project Veritas employees. The court appoints a special master to oversee the review of materials seized from the employees to ensure fairness and avoid potential issues related to privilege and the First Amendment. The special master will determine what materials are responsive to the warrants and resolve any objections before materials are provided to investigators. The court denies the request to investigate alleged leaks related to the investigation due to a lack of legal basis.

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    James O'Keefe - Special Master - Order

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    The document discusses three motions related to search warrants executed by the FBI on current and former Project Veritas employees. The court appoints a special master to oversee the review of materials seized from the employees to ensure fairness and avoid potential issues related to privilege and the First Amendment. The special master will determine what materials are responsive to the warrants and resolve any objections before materials are provided to investigators. The court denies the request to investigate alleged leaks related to the investigation due to a lack of legal basis.

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    © All Rights Reserved
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    10K views5 pages

    James O'Keefe - Special Master - Order

    Uploaded by

    Washington Examiner
    The document discusses three motions related to search warrants executed by the FBI on current and former Project Veritas employees. The court appoints a special master to oversee the review of materials seized from the employees to ensure fairness and avoid potential issues related to privilege and the First Amendment. The special master will determine what materials are responsive to the warrants and resolve any objections before materials are provided to investigators. The court denies the request to investigate alleged leaks related to the investigation due to a lack of legal basis.

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    © All Rights Reserved
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    of 5

    Case 1:21-mc-00813-AT Document 48 Filed 12/08/21 Page 1 of 5

    USDC SDNY
    DOCUMENT
    ELECTRONICALLY FILED
    UNITED STATES DISTRICT COURT DOC #: _________________
    SOUTHERN DISTRICT OF NEW YORK DATE FILED: 12/8/2021

    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:

    Before the Court are three motions for an order appointing a special master to review the

    contents of electronic devices seized by the Federal Bureau of Investigation (“FBI”) from

    Petitioners James O’Keefe, Eric Cochran, and Spencer Meads. O’Keefe Mot. I, 21 Misc. 813,

    ECF Nos. 1, 10; Cochran Mot., 21 Misc. 819, ECF No. 8; Meads Mot., 21 Misc. 825, ECF No.

    8. Project Veritas and O’Keefe also seek an order directing the Government to investigate and

    provide information to the Court as to alleged leaks of information about the underlying

    investigation in this matter. O’Keefe Mot. II, 21 Misc. 813, ECF No. 13. For the reasons stated

    below, Petitioners’ motions are GRANTED in part and DENIED in part.

    BACKGROUND

    Petitioners are all current or former employees of Project Veritas. During the first week

    of November 2021, the Honorable Sarah L. Cave issued search warrants authorizing the seizure
    Case 1:21-mc-00813-AT Document 48 Filed 12/08/21 Page 2 of 5

    of evidence from Petitioners’ homes, all of which are located in New York state. 1 Cochran Mot.

    Ex. A, 21 Misc. 819, ECF No. 8-1; Meads Mot. Ex. A, 21 Misc. 825, ECF No. 8-1; O’Keefe

    Mot. I Ex. F, 21 Misc. 813, ECF No. 10-6. On November 4, 2021, the FBI recovered certain

    electronic devices from Cochran’s and Meads’ residences. Cochran Mot. Ex. B, 21 Misc. 819,

    ECF No. 8-2; Meads Mot. Ex. A at 13. On November 6, 2021, the FBI recovered two cellphones

    from O’Keefe’s home. O’Keefe Mot. I at 2.

    DISCUSSION

    I. Special Master

    The Court shall not consider arguments related to the validity of the search warrants

    because that issue is not before the Court.

    It is within the discretion of a district court to appoint a special master to review materials

    collected pursuant to a search warrant. See United States v. Stewart, No. 02 Cr. 396, 2002 WL

    1300059, at *4 (S.D.N.Y. June 11, 2002). Courts in this district have appointed special masters

    pursuant to Federal Rule of Civil Procedure 53(a)(1)(C) and pursuant to their “inherent and

    equitable powers and authority.” See, e.g., In re Search Warrants Executed on April 9, 2018,

    No. 18 Mag. 3161 (S.D.N.Y. Apr. 13, 2018), ECF No. 30 at 1. Generally, a filter team at the

    United States Attorneys’ Office for this district—a separate group of attorneys and agents who

    are walled off from the investigative team—is deployed when there are concerns about the

    investigative team accessing privileged materials. The filter team conducts a review of the

    seized materials for responsiveness and privilege. See In re Search Warrants Executed on April

    28, 2021, No. 21 Misc. 425, 2021 WL 2188150, at *2 (S.D.N.Y. May 28, 2021). Even in

    1
    Cochran requests access to the affidavits supporting issuance of the warrant pertaining to him and Meads. Cochran
    Reply at 1, 21 Misc. 819, ECF No. 10. For the reasons stated in the Court’s order dated November 23, 2021, In re
    Search Warrant Dated November 5, 2021, No. 21 Misc. 813, ECF No. 42, the request is DENIED.

    2
    Case 1:21-mc-00813-AT Document 48 Filed 12/08/21 Page 3 of 5

    complex situations, courts have found that the appointment of a special master is not warranted

    because “the filter team process adequately safeguards the attorney-client privilege and the

    constitutional rights of the search subjects[.]” Id. But, courts have exercised their discretion to

    appoint a special master in situations in which it is necessary to ensure “the perception of

    fairness.” Id. at *4; see also Stewart, 2002 WL 1300059, at *8.

    The Court recognizes, as other courts in this district have concluded, that “the Southern

    District prosecutors have integrity and decency,” and the filter team alone could conduct the

    review “with utmost integrity.” In re Search Warrants Executed on April 9, 2018, No. 18 Mag.

    3161 (S.D.N.Y. May 2, 2018), ECF No. 38 at 8; see also United States v. Grant, No. 04 Cr. 207,

    2004 WL 1171258, at *3 (S.D.N.Y. May 25, 2004). However, the Court determines that the

    appointment of a special master is warranted here because “it is important that the procedure

    adopted . . . not only be fair but also appear to be fair.” Stewart, 2002 WL 1300059, at *8. In

    light of the potential First Amendment concerns that may be implicated by the review of the

    materials seized from Petitioners, the Court finds that the appointment of a special master will

    “help[] to protect the public’s confidence in the administration of justice.” Id.

    Accordingly, the Court appoints the Honorable Barbara S. Jones (retired) as special

    master (the “Special Master”). The Court finds that the Special Master is not subject to

    disqualification pursuant to Federal Rule of Civil Procedure 53(a)(2) or 28 U.S.C. § 455. The

    Special Master shall oversee the review of the materials seized from Petitioners. The structure of

    the review process shall be as follows:

    1. The Government shall complete extraction of the materials from Petitioners’


    devices. The Government shall provide the extracted materials to the Special
    Master.

    2. The Special Master shall expeditiously conduct an initial review of the extracted
    materials to determine what materials are responsive to the search warrants. To

    3
    Case 1:21-mc-00813-AT Document 48 Filed 12/08/21 Page 4 of 5

    assist with the Special Master’s review, the Government shall provide the Special
    Master, on an ex parte basis, with a copy of the search warrants executed on
    Petitioners, the underlying application materials for those search warrants, and
    any other information that will assist the Special Master in conducting her review.
    If the Special Master determines that the efficient administration of her duties
    requires the assistance of additional professionals, support staff, or expert
    consultants, she may submit a work proposal to the parties, who will have five
    business days to submit comments, after which time the Special Master may then
    submit the proposal to the Court for consideration.

    3. Materials deemed to be responsive to the search warrants shall be provided by the


    Special Master to the filter team, which shall be walled off from the investigative
    team working on matters related to the investigation that is the subject of the
    search warrants or any investigation related to Petitioners.

    4. The filter team shall conduct a review of the responsive materials to determine if
    any should be withheld from the investigative team on any grounds—including
    grounds related to any First Amendment concerns, journalistic privileges, and
    attorney-client privileges.

    5. After the filter team conducts its review, Petitioners shall review the materials
    slated to be released to the investigative team and raise any objections. The
    Special Master shall rule on any objections and provide the proper materials to the
    investigative team.

    6. The parties shall confer with the Special Master regarding compensation and
    expenses. The Special Master shall submit a proposal for the Court’s approval as
    to the procedures for paying the Special Master’s compensation and expenses.

    7. Additional duties may be assigned to the Special Master by the Court in


    subsequent orders, upon notice to the parties and opportunity to be heard with
    regard to those additional duties.

    8. The Special Master shall have the full authority set forth in Federal Rule of Civil
    Procedure 53(c).

    9. As an agent and officer of the Court, the Special Master and those working at her
    direction shall enjoy the same protections from being compelled to give testimony
    and from liability for damages as those enjoyed by other federal judicial adjuncts
    performing similar functions.

    10. As required by Rule 53(b)(2) of the Federal Rules of Civil Procedure, the Court
    directs the Special Master to proceed with all reasonable diligence.

    11. The Special Master shall be discharged or replaced only upon an order of this
    Court.

    4
    Case 1:21-mc-00813-AT Document 48 Filed 12/08/21 Page 5 of 5

    12. The parties and their successors in office, agents, and employees will observe
    faithfully the requirements of this Order and cooperate fully with the Special
    Master in the performance of her duties.

    13. The Court reserves the right to remove the Special Master if the Court finds that
    the parties are not expeditiously completing this work.

    II. Alleged Leaks

    Project Veritas and O’Keefe request that the Court order the Government to conduct a

    search for alleged leaks related to the Government’s investigation. O’Keefe Mot. II at 1.

    Petitioners do not provide a legal basis for their request or allege that the Government violated

    any specific rule, law, or policy. See generally, id. Accordingly, the request is DENIED.

    CONCLUSION

    For the reasons stated above, Petitioners’ motions are GRANTED in part and DENIED in

    part.

    SO ORDERED.

    Dated: December 8, 2021


    New York, New York

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