24-192

In re: Search Warrant dated November 3, 2021

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY 

ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF 

APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER 

IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN 

ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY 

ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 

At a stated term of the United States Court of Appeals for the Second Circuit, held at 

the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, 

on the 23rd day of July, two thousand twenty-four. 

PRESENT: 

JOSEPH F. BIANCO, 

MYRNA PÉREZ, 

SARAH A. L. MERRIAM, 

Circuit Judges. 

_____________________________________ 

In re: Search Warrant dated November 3, 2021. 

--------------------------------------------------------

SPENCER MEADS, 

Petitioner-Appellant, 

v. 24-192 

UNITED STATES OF AMERICA, 

 Respondent-Appellee. 

_____________________________________ 

FOR PETITIONER-APPELLANT: RICHARD L. SULLIVAN, Law Office of Richard 

L. Sullivan, Brockport, New York. 

FOR RESPONDENT-APPELLEE: ROBERT B. SOBELMAN, Assistant United States 

Attorney (Jacqueline Kelly, Mitzi Steiner,

Danielle R. Sassoon, Kevin T. Sullivan, Stephen 

J. Ritchin, Lisa P. Korologos, and Nathan Rehn, 
2 

Assistant United States Attorneys, on the 

briefs), for Damian Williams, United States 

Attorney for the Southern District of New York, 

New York, New York. 

Appeal from an order of the United States District Court for the Southern District of New 

York (Analisa Torres, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 

DECREED that the order, entered on December 21, 2023, is AFFIRMED. 

Petitioner-Appellant Spencer Meads appeals from the district court’s order authorizing the 

disclosure to the government of certain materials on electronic devices that were seized pursuant 

to search warrants executed at the residences of James O’Keefe, Eric Cochran, and Meads in 

November 2021.1

 All three individuals were previously affiliated with Project Veritas, which 

describes itself as “a national media organization dedicated to undercover investigative 

journalism.” App’x at 145 (internal quotation marks and citation omitted). O’Keefe founded 

Project Veritas and served as its President until February 2023 and, at the time of the events in 

2020 that were the focus of the search warrant, Meads and Cochran each had the title of

investigative journalist for the organization. Concerned that the seized devices contained materials 

protected by the journalist’s privilege or the attorney-client privilege, Project Veritas, O’Keefe, 

Cochran, and Meads (collectively, “Petitioners”) requested that the district court appoint a special 

master to oversee the review of the seized documents. The district court granted that request and, 

on March 21, 2023, the special master issued a Report and Recommendation (“R&R”) identifying 

943 documents as responsive to the search warrants (the “Responsive Materials”). With respect 

to Petitioners’ claims of privilege, the special master concluded that: (1) none of the Responsive 

1

 A magistrate judge approved the search warrants based on affidavits establishing probable cause that 

electronic devices at the residences of O’Keefe, Cochran, and Meads contained evidence of federal crimes 

related to a conspiracy involving the theft and interstate transportation of stolen property. 
3 

Materials was protected by the journalist’s privilege; (2) twenty-four documents were at least 

partially protected by the attorney-client privilege; and (3) ten documents would have been 

protected by the attorney-client privilege but fell within the crime-fraud exception and were 

therefore subject to disclosure. The district court issued an order adopting the R&R in its entirety

and overruling Petitioners’ objections, which claimed that the special master applied incorrect 

legal standards and erred in her analysis of the claimed evidentiary privileges.

2

 See generally In 

re Search Warrant dated Nov. 5, 2021, Nos. 21 Misc. 813 (AT) et seq., 2023 WL 8868371 

(S.D.N.Y. Dec. 21, 2023). Meads challenges that order on appeal, asserting primarily the same 

arguments raised by Petitioners below. We assume the parties’ familiarity with the underlying 

facts, procedural history, and issues on appeal, to which we refer only as necessary to explain our 

decision to affirm.

I. Jurisdiction

As a threshold matter, the parties dispute whether we have appellate jurisdiction over the 

district court’s order approving the release of certain materials to the government over the 

objections of a party under criminal investigation. Meads argues that we have jurisdiction under 

Section 1291, which grants this Court “jurisdiction of appeals from all final decisions of the district 

courts of the United States.” 28 U.S.C. § 1291. The government, on the other hand, contends that, 

“although the District Court’s order concluded the privilege litigation,” the order is not final within 

the meaning of the statute “because the litigation is linked to a grand jury investigation that may 

lead to Meads’s prosecution,” and “Meads can vindicate his claims in the event he is indicted and 

prosecuted.” Appellee’s Br. at 12–13. The government relies primarily on Standard Drywall, Inc. 

2

 Petitioners argued, inter alia, that: (1) all Responsive Materials were protected by the journalist’s 

privilege; (2) eleven additional documents were protected by the attorney-client privilege (i.e., beyond the 

twenty-four that the special master identified as privileged); and (3) no documents qualified for the crimefraud exception to the attorney-client privilege.
4 

v. United States, 668 F.2d 156 (2d Cir. 1982), in which this Court held that an order denying a 

motion under Federal Rule of Criminal Procedure 41 was not appealable “[w]here, as here, the 

party moving for return of seized property is the subject of a grand jury inquiry, [because] 

allowance of an appeal from denial of the motion would interfere with the grand jury proceedings

and permit piecemeal appeals.” Id. at 158 (footnote and citations omitted). 

We need not determine whether Standard Drywall extends to the circumstances of this 

case. Where, as here, “a question of statutory (non-Article III) jurisdiction is complex and the 

claim fails on other more obvious grounds, this Court can assume hypothetical jurisdiction.” 

Miller v. Metro. Life Ins. Co., 979 F.3d 118, 123 (2d Cir. 2020); see also Butcher v. Wendt, 975 

F.3d 236, 244 (2d Cir. 2020) (finding the assumption of hypothetical jurisdiction “particularly 

appropriate . . . where the jurisdictional issue is both novel and arguably complex, while 

[appellant’s] claims are plainly meritless”). We thus assume we have jurisdiction over this appeal 

and proceed to the merits of Meads’s claims. 

II. Privilege Determinations3

We review the district court’s privilege determinations for abuse of discretion. See United 

States v. Mejia, 655 F.3d 126, 131–32 (2d Cir. 2011) (attorney-client privilege); Chevron Corp. v. 

Berlinger, 629 F.3d 297, 306 (2d Cir. 2011) (journalist’s privilege). “A district court has abused 

its discretion if it based its ruling on an erroneous view of the law or on a clearly erroneous 

assessment of the evidence, or rendered a decision that cannot be located within the range of 

permissible decisions.” In re Sims, 534 F.3d 117, 132 (2d Cir. 2008) (alteration adopted) (internal 

3

 We also reject Meads’s relevance and responsiveness challenges. Meads erroneously asserts that the 

Gonzales test governs whether materials are responsive to a search warrant. “We look directly to the text 

of the search warrant to determine the permissible scope of an authorized search.” United States v. Johnson, 

93 F.4th 605, 613 (2d Cir. 2024). After reviewing the sealed materials, and the text of the warrants 

themselves, we find that the challenged materials fall within the broad scope of the search warrants here.
5 

quotation marks and citations omitted). “Identification of the correct legal standard raises a pure 

question of law, as to which we exercise plenary review.” Chevron Corp., 629 F.3d at 306. 

a. Journalist’s Privilege 

On appeal, Meads challenges the district court’s conclusion that none of the Responsive 

Materials was protected by the journalist’s privilege, arguing that the district court applied an 

incorrect legal standard. As set forth below, we find Meads’s arguments unpersuasive. 

This Court “has long recognized a qualified evidentiary privilege for information gathered 

in a journalistic investigation.” Id. at 306. This privilege is “intended to protect the public’s 

interest in being informed by a vigorous, aggressive and independent press, by limiting the 

circumstances in which litigants may obtain access to press files through court-ordered discovery.” 

Id. at 306–07 (emphasis, internal quotation marks, and citations omitted). The journalist’s 

privilege applies to both confidential and nonconfidential information; however, “where the 

protection of confidential sources is not involved, the nature of the press interest protected by the 

privilege is narrower.” Gonzales v. Nat’l Broad. Co., 194 F.3d 29, 36 (2d Cir. 1999). When an 

interest in preserving confidential sources is at stake, “disclosure may be ordered only upon a clear 

and specific showing that the information is: highly material and relevant, necessary or critical to 

the maintenance of the claim, and not obtainable from other available sources.” McGraw-Hill, 

Inc. v. Arizona (In re Petroleum Prods. Antitrust Litig.), 680 F.2d 5, 7 (2d Cir. 1982). However, 

“when protection of confidentiality is not at stake, . . . the showing needed to overcome the 

privilege is less demanding than the showing required where confidential materials are sought.” 

Gonzales, 194 F.3d at 36. Thus, when the information is nonconfidential, the party seeking 
6 

disclosure need only “show 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.” Id.

Here, the Responsive Materials relate to Project Veritas’s investigation of a potential story 

based on information provided by two sources—Aimee Harris and Robert Kurlander. In 

September 2020, Harris discovered that an individual (the “Victim”), whose immediate family 

member was a candidate for national political office, had stored personal property, including a 

handwritten journal, at a house in Florida where Harris was temporarily residing. After Harris 

stole the property, she and Kurlander allegedly provided it to Project Veritas, which paid each of 

them $20,000. In August 2022, Harris and Kurlander pled guilty to offenses arising from this 

conduct. Although Petitioners argued that Harris and Kurlander had provided the stolen property 

to Project Veritas under a promise of confidentiality, the district court concluded that 

communications with or about Harris or Kurlander and the information they provided were not 

confidential for purposes of the journalist’s privilege because, by pleading guilty, Harris and 

Kurlander had “revealed to the public that they were the ones who provided the Victim’s journal 

and additional items to Project Veritas.” In re Search Warrant dated Nov. 5, 2021, 2023 WL 

8868371, at *6. The district court thus applied the less-demanding Gonzales test for 

nonconfidential information and concluded that the government had met its burden of showing 

that the Responsive Materials were relevant to the criminal conduct under investigation and were 

not reasonably obtainable from other sources. 

We conclude that the district court applied the proper legal standard and discern no abuse 

of discretion in the district court’s determinations under that standard. As the district court 

correctly recognized, “the protection of confidential sources is not involved” where, as here, the 

information sought has been made public by the sources themselves. United States v. Treacy, 639 
7 

F.3d 32, 42 (2d Cir. 2011) (internal quotation marks and citation omitted) (applying the Gonzales

test because “not only was [the journalist] not protecting any confidential material or source, he 

sought to withhold evidence that his source himself . . . desired be disclosed”); see also United 

States v. Cutler, 6 F.3d 67, 73–75 (2d Cir. 1993) (requiring production of reporters’ unpublished 

notes as to source’s public statements but not as to statements by anonymous government 

officials). Thus, even assuming arguendo that Harris and Kurlander initially provided the stolen 

property to Project Veritas under a promise of confidentiality, the Responsive Materials became

nonconfidential once Harris and Kurlander pled guilty and revealed to the public that they were 

Project Veritas’s formerly confidential sources. Since the Responsive Materials are 

nonconfidential, the district court properly applied the Gonzales test, finding that the government 

had overcome the privilege because: (1) the government’s “investigation is focused on Petitioners’ 

actions” and the magistrate judge and special master both “reviewed the materials to determine 

whether they were, in fact, responsive to the warrants and relevant to the Government’s case”; and

(2) “[w]hether evidence is on Petitioners’ devices is relevant to Petitioners’ knowledge and 

intent.”4

 In re Search Warrant dated Nov. 5, 2021, 2023 WL 8868371, at *7–8. 

On appeal, Meads challenges the district court’s use of the Gonzales test, arguing that the 

Responsive Materials remain confidential and are additionally protected by general First 

Amendment principles. First, Meads contends that Harris’s and Kurlander’s guilty pleas cannot 

4

 Meads contends that the district court failed to conduct the required de novo review of the R&R because 

it did not analyze the Responsive Materials on a document-by-document basis in its opinion. However, 

where, as here, a district court indicates that it has independently reviewed the special master’s (or

magistrate judge’s) determination and conducted a de novo review of all objections, there is no basis to 

question that the district court completed the necessary review. See Thomas E. Hoar, Inc. v. Sara Lee Corp., 

900 F.2d 522, 526 (2d Cir. 1990); see also Murphy v. Int’l Bus. Machines Corp., 23 F.3d 719, 722 (2d Cir. 

1994) (“We do not construe the brevity of the order as an indication that the objections were not given due 

consideration . . . .”). In addition, the district court sufficiently addressed all of the objections to the R&R, 

including the assertion that other confidential sources were contained in the Responsive Materials.
8 

render the Responsive Materials nonconfidential because the documents were created prior to their 

pleas, and neither a journalist nor a source can “unilaterally negate . . . confidentiality to the 

detriment of the other.” Appellant’s Br. at 27. Meads, however, misconstrues the applicable legal 

standard under Gonzales. To be sure, the journalist’s privilege belongs to the journalist, see

Branzburg v. Hayes, 408 U.S. 665, 695 (1972); that said, whether the information claimed to be 

protected by the privilege is confidential depends on whether that information is public—

regardless of who made it public and when, see Cutler, 6 F.3d at 73–75; In re von Bulow, 828 F.2d 

94, 103 (2d Cir. 1987) (“Matters actually disclosed in public lose their privileged status because 

they obviously are no longer confidential. The cat is let out of the bag, so to speak.”). Therefore, 

because Harris’s and Kurlander’s guilty pleas disclosed their identities as confidential sources and 

the details of the information they provided to Project Veritas, the Responsive Materials reflecting 

that information were not confidential.

5

 

Meads further contends that the district court should have evaluated the Responsive 

Materials in light of Bartnicki v. Vopper, 532 U.S. 514, 529 (2001), where 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. He argues that, under Bartnicki, the First Amendment “shields journalists from 

investigation” into any conduct other than their alleged participation in the theft of information. 

Appellant’s Br. at 20. We disagree. As the Supreme Court stated in Branzburg, 408 U.S. at 691, 

“[i]t would be frivolous to assert . . . that the First Amendment, in the interest of securing news or 

otherwise, confers a license on either the reporter or his news sources to violate valid criminal 

5

 Moreover, during the pendency of this litigation, Petitioners repeatedly made disclosures in public court 

documents regarding the identity of Project Veritas’s confidential sources, as well as details surrounding 

the information they provided.
9 

laws.” In New York Times Co. v. Gonzales, 459 F.3d 160, 173 (2d Cir. 2006), applying Branzburg, 

we held that the First Amendment did not prevent the disclosure of confidential source 

communications to a grand jury investigation “when there [was] probable cause to believe that the 

press” had engaged in criminal conduct. Here, a magistrate judge issued search warrants after 

finding probable cause that the Petitioners’ electronic devices contained evidence of federal crimes 

including conspiracy to transport stolen property across state lines and possess stolen goods. See

18 U.S.C. §§ 371, 2314, 2315. The district court, agreeing with the recommendation of the special 

master, then determined that the Responsive Materials were relevant to the categories set forth in 

the search warrants. See New York Times Co., 459 F.3d at 170 (concluding that it was “beyond 

argument that the evidence from the reporters [was] on its face critical to [the criminal] inquiry” 

into the reporters’ conduct). Despite Meads’s arguments to the contrary, the holding of Bartnicki

does not protect the Responsive Materials from disclosure when the Gonzales test is satisfied. 

In sum, the district court did not abuse its discretion in determining that the Responsive 

Materials were not protected by the journalist’s privilege. 

b. Attorney-Client Privilege

Meads also argues that the district court erred in concluding that certain of the Responsive 

Materials were not protected by the attorney-client privilege. In particular, he contends that the 

district court erroneously concluded that seventeen documents did not reflect requests for legal 

advice and that ten documents qualified for the crime-fraud exception. We disagree.

6

“The attorney-client privilege protects communications (1) between a client and his or her 

attorney (2) that are intended to be, and in fact were, kept confidential (3) for the purpose of 

6

 Because we find Meads’s challenges to the district court’s determinations regarding the attorney-privilege 

to be without merit, we need not address the government’s threshold argument that Meads lacks standing 

to assert, or litigate on appeal, the privilege on behalf of Project Veritas with respect to the Responsive 

Materials.
10 

obtaining or providing legal advice.” Mejia, 655 F.3d at 132. When in-house lawyers also serve 

as business executives, “the question usually is whether the communication was generated for the 

purpose of obtaining or providing legal advice as opposed to business advice.” Pritchard v. Cnty. 

of Erie (In re Cnty. of Erie), 473 F.3d 413, 419 (2d Cir. 2007). “When an attorney is consulted in 

a capacity other than as a lawyer, as (for example) a policy advisor, media expert, business 

consultant, banker, referee or friend, that consultation is not privileged.” Id. at 421. Moreover, “it 

is well-established that communications that otherwise would 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.” United States v. Roe (In re Richard 

Roe, Inc.), 68 F.3d 38, 40 (2d Cir. 1995) (alteration adopted) (internal quotation marks and citation 

omitted). “[A] party seeking to invoke the crime-fraud exception must at least demonstrate that 

there is probable cause to believe that a crime or fraud has been attempted or committed and that 

the communications were in furtherance thereof.” Id. We review a district court’s determination 

that the crime-fraud exception applies for abuse of discretion, and any “factual determinations are 

governed by the clearly erroneous standard.” United States v. Jacobs, 117 F.3d 82, 87, 89 (2d Cir. 

1997), abrogated on other grounds by Loughrin v. United States, 573 U.S. 351 (2014). 

Here, the district court determined that nine documents were not protected by the attorneyclient privilege because they did not reflect requests for legal advice, and that ten documents were 

not protected because they qualified for the crime-fraud exception to the privilege. With respect 

to the first category, the district court concluded that documents communicating certain facts to 

Project Veritas’s Chief Legal Officer (“CLO”) did not, as Petitioners argued, constitute an implicit 

request for legal advice regarding newsworthiness. The district court also concluded that 

communications between legal and non-legal personnel regarding efforts to authenticate the stolen 
11

journal did not reflect legal advice. On appeal, Meads argues that “legal counsel for media 

organizations . . . routinely advis[e] journalists on the element of newsworthiness,” and speculates 

that such advice must have been “an acute consideration” in Project Veritas’s efforts to 

authenticate the journal. Appellant’s Br. at 42; see also Reply Br. at 29 (arguing that “legal liability 

was a constant consideration” given Project Veritas’s tactics and that “members of Project Veritas 

understandably preferred to have attorneys in near-constant communication as investigations 

unfolded”). Meads does not, however, identify any instance in which such advice was provided, 

or otherwise point to any error in the district court’s assessment of the documents at issue.7 We 

accordingly conclude that the district court did not abuse its discretion in determining that the 

documents at issue were not protected by the attorney-client privilege. 

With respect to the crime-fraud exception, the district court concluded that ten documents 

were created in furtherance of the conspiracy for which the magistrate judge had found probable 

cause and therefore were not protected by the attorney-client privilege. In particular, the district 

court found that each of the ten documents demonstrated an effort to conceal the criminal 

conspiracy or to create or present misleading or false evidence, or otherwise served to further the 

conspiracy. Meads argues on appeal that this conclusion was an error because “it was not 

established that (1) a crime or fraud post-dating the legal advice was committed; or (2) that the 

communication in issue was in furtherance of that conduct.” Appellant’s Br. at 46. We are not 

persuaded. First, although seven of the ten documents post-date Project Veritas’s receipt of the 

stolen property, documents need not pre-date that specific event in order to further the conspiracy, 

7

 In his Reply Brief, Meads argues that certain of the Responsive Materials do in fact reflect explicit 

requests for legal advice. However, the district court concluded that the documents that Meads identifies 

as containing such requests qualified for the crime-fraud exception to the attorney-client privilege. Thus, 

it is unnecessary to address Meads’s argument that these particular documents reflect legal advice in order 

to determine whether the district court properly analyzed claims of attorney-client privilege with respect to 

these documents. 
12 

particularly with respect to Petitioners’ possession of stolen property, which is one of the federal 

crimes for which a magistrate judge found probable cause. Second, the district court did make the 

requisite finding that “there [was] probable cause to believe that the particular communication[s]

with counsel . . . w[ere] intended in some way to facilitate or to conceal the criminal activity.” In 

re Richard Roe, Inc., 68 F.3d at 40. Meads takes issue with the basis for this finding, arguing that 

these ten documents “clearly involve typical legal advice Petitioners sought from their attorneys 

routinely,” Appellant’s Br. at 46–47 n.14, and that there is “no evidence that . . . Project Veritas 

ha[d] knowledge or reason to believe the [Victim’s] diary or other property may have been stolen, 

let alone that Project Veritas journalists participated in any such theft,” id. at 48. However, the 

district court directly reviewed the documents at issue and reached the opposite conclusion. 

Having reviewed these documents for the purposes of this appeal, we do not find that this was an 

erroneous assessment of the evidence, much less a clearly erroneous assessment. See In re Sims, 

534 F.3d at 132. 

In sum, we conclude that the district court did not abuse its discretion in connection with 

the attorney-client privilege determinations. 

* * * 

 
13 

We have considered Meads’s remaining arguments and find them to be without merit.8 

Accordingly, we AFFIRM the order of the district court. 

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk of Court

8

 Meads additionally argues that the district court erred in denying Petitioners’ motion for the return of 

seized property pursuant to Federal Rule of Criminal Procedure 41(g). We review the grant or denial of 

relief under Rule 41(g) for abuse of discretion, but “we review de novo any legal conclusion underlying” 

that decision. United States v. Zaleski, 686 F.3d 90, 92 (2d Cir. 2012). Rule 41(g) “permits a person 

aggrieved by the government’s unlawful seizure or deprivation of property to move for specific relief: the 

property’s return.” Adeleke v. United States, 355 F.3d 144, 149 (2d Cir. 2004). “[D]uring the pendency of 

an ongoing criminal investigation or proceeding, the defendant bears the burden of demonstrating that the 

government’s retention of the seized property is unreasonable.” Allen v. Grist Mill Cap. LLC, 88 F.4th 383, 

396 (2d Cir. 2023). Meads has not shown why the government’s retention of the property during the 

pendency of its ongoing criminal investigation is unreasonable, and there is therefore no basis to disturb 

the district court’s denial of the Rule 41(g) motion.