559 F.Supp.3d 274
S.D.N.Y.2021Background
- Michael Avenatti was indicted in S.D.N.Y. for an alleged scheme to defraud a former client, Stephanie Clifford (Stormy Daniels); he had related prior prosecutions in other districts.
- In March 2019 the Government obtained limited consent from Clifford to screenshot certain WhatsApp messages and later received an electronic "export" of the WhatsApp conversation she provided voluntarily.
- The Government also obtained a warrant to search Avenatti’s iCloud account (and later accessed his iPad); a Government "filter team" conducted an initial privilege review before turning materials over to the prosecution team.
- Avenatti filed an untimely omnibus motion (without leave) seeking: (1) exclusion of WhatsApp evidence for lack of the "original, electronically stored" messages; (2) suppression of iCloud/iPad search fruits because the warrant improperly delegated privilege review to the executive branch; and (3) immediate production of prior statements of certain witnesses.
- The Court exercised its discretion to reach the merits despite untimeliness, rejected Avenatti’s arguments, and denied the omnibus motion in full (with a limited condition on notice before iPad materials are disclosed to prosecutors).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility/production of WhatsApp messages | United States: produced what it possessed (screenshots and export); no obligation to produce materials it did not control. | Avenatti: Government must produce "original, electronically stored" chats and forensic copies; otherwise exclude or hold evidentiary hearing. | Denied. Government only must produce materials in its possession; screenshots/exports may be authenticated and admitted; objections preserved for trial. |
| Suppression of iCloud search fruits — filter team delegation | United States: warrant authorized filter team; reliance on judicial approval and Leon; filter teams are common and adequate to protect privilege. | Avenatti: warrant improperly delegated judicial function to DOJ by letting filter team perform initial privilege review; warrant lacked protocols and was ex parte. | Denied. Fourth Circuit precedent distinguished; filter-team review acceptable where defendant has opportunity for judicial review (and here Avenatti had notice/opportunity). |
| Suppression of iPad search fruits — same delegation concern | United States: same defenses as to iCloud; procedures followed and will give notice before turning material over. | Avenatti: seeks to bar Government from searching iPad on same separation-of-powers grounds. | Denied. Overruled; Government must give reasonable notice and opportunity to object before sharing iPad materials with prosecutors. |
| Immediate production of witnesses' prior statements (Brady/Giglio/Jencks) | United States: has complied and will continue to comply with Brady/Giglio; will produce §3500 (Jencks) materials per practice before trial. | Avenatti: seeks prompt/early disclosure of all prior statements attributable to specified witnesses. | Denied. Government's representation of compliance suffices for Brady/Giglio; Jencks Act prevents pretrial disclosure and Government offered to produce §3500 material one week before trial. |
Key Cases Cited
- Brady v. Maryland, 373 U.S. 83 (establishes prosecution's duty to disclose materially exculpatory evidence)
- Giglio v. United States, 405 U.S. 150 (Giglio material and impeachment disclosure rules)
- United States v. Leon, 468 U.S. 897 (good-faith reliance on a warrant)
- Riley v. California, 573 U.S. 373 (cellphone search and privacy; warrants generally required)
- In re Search Warrant Issued June 13, 2019, 942 F.3d 159 (4th Cir.) (filter-team privilege review problematic in unique law-firm search circumstances)
- United States v. Gagliardi, 506 F.3d 140 (2d Cir.) (screenshots/cut-and-paste electronic communications may be admissible if authenticated)
- United States v. Coppa, 267 F.3d 132 (2d Cir.) (Jencks Act bars pretrial disclosure of witness statements)
- United States v. Yousef, 327 F.3d 56 (2d Cir.) (approving government firewalls/filter teams to protect privileged communications)
- In re The City of New York, 607 F.3d 923 (2d Cir.) (evaluating privilege is a judicial function)
- United States v. Hutcher, 622 F.2d 1083 (2d Cir.) (government must produce only what is in its possession)
- In re Grand Jury Subpoenas, 454 F.3d 511 (6th Cir.) (filter/taint teams appropriate to sift privileged material)