UNITED STATES OF AMERICA, v. CARLOS WATSON and OZY MEDIA, INC., Defendants 23-CR-82(EK) United States District Court, E.D. New York Filed July 28, 2023 Komitee, Eric R., United States District Judge MEMORANDUM & ORDER *1 Carlos Watson and the company he founded, Ozy Media, are awaiting trial on charges of conspiring to commit securities fraud and wire fraud, among other things. Before the Court is the government's motion to compel the defendants to produce documents responsive to two outstanding grand jury subpoenas, and the defendants’ cross-motion to quash. For the reasons set forth below, the Court grants the government's motion and denies the defendants’.[1] I. Background The parties do not meaningfully dispute the relevant procedural history, which includes the following. The government first served subpoenas on both defendants on October 11, 2021. Gov't Mot. to Compel (“Gov't Mot.”) 1, ECF No. 59; see Ex. A, ECF No. 59-1; Ex. B, ECF No. 59-2. Among other things, the subpoena to Ozy called for documents pertaining to investors’ capital contributions; materials produced for Ozy's solicitation of such investments; records reflecting audience and consumer metrics; and statements of Ozy's financial position — all fairly standard fare for an initial document request in a case like this. See Ex. B at 4. The Ozy subpoena also called for records concerning a diligence call with a potential investor that became the subject of a September 2021 New York Times article.[2] On that call, the Times reported, an Ozy executive had impersonated a YouTube executive and made sweeping claims about the performance of Ozy's video content. The subpoena to Watson generally called for similar — but not entirely coextensive — records and communications. See Ex. A at 4. Throughout the first half of 2022, Ozy made various productions in response, totaling approximately 27,000 documents. Watson did not produce anything. Gov't Mot. 1. On July 1 and July 11, 2022, respectively, the government served Watson and Ozy with revised subpoenas. Id. at 1–2; see Ex. C, ECF No. 59-3; Ex. D, ECF No. 59-4. The lists of items sought were unchanged, but these subpoenas differed from the originals in two ways. First, the subpoena to Watson was addressed to “Carlos Watson, as custodian for Ozy Media,” rather than simply to “Carlos Watson” (as the original had been). See Ex. C at 2, 4. Second, both revised subpoenas indicated that the grand jury was not seeking “any records of ‘newsgathering activities,’ as that term is used in 28 C.F.R. § 50.10.” See id. at 4; Ex. D at 4. In response to these revised subpoenas, Watson made six total productions, totaling approximately 20,000 documents, and Ozy made one additional production of approximately 1,700 documents. Gov't Mot. 2. *2 According to the government, the defendants’ productions remain incomplete. The government says it knows this because the grand jury has learned from third parties about numerous items — records and communications that Ozy either created or was a party to, and that are responsive to the subpoenas — that were not produced by either defendant. Id.[3] The government indicates that it raised its concerns regarding the incomplete productions with Ozy's and Watson's previous lawyers, who assured the government they would work to complete the productions. Id. at 2–3. The most recent productions occurred on August 9 and October 7, 2022, but the government represents that “substantial gaps” remain. Id. The indictment in this case was unsealed on February 23, 2023. See ECF No. 5. In it, the grand jury alleges that between 2018 and 2021, the defendants engaged in a scheme to defraud Ozy's investors and lenders by making various misrepresentations about the company's finances, performance, and funding. ECF No. 1. The government re-issued a third subpoena to Watson and his current counsel on March 6, 2023; this subpoena was materially identical to the prior one to Watson, but extended the date range to March 6, 2023. Gov't Mot. 3; see Ex. E, ECF No. 59-5. The government also provided Ozy and its current counsel with a copy of the July 11, 2022 subpoena. Gov't Mot. 3. Neither defendant has made any additional productions. On May 4, 2023, the government moved to compel Ozy and Watson to produce all documents responsive to the outstanding subpoenas dated July 11, 2022 and March 6, 2023, respectively. These are the subpoenas that are currently at issue (and which I refer to as the “Subpoenas”). The defendants jointly opposed the government's motion and — for the first time, more than eighteen months after receiving the initial subpoenas — cross-moved to quash or modify the Subpoenas on various grounds. Defs. Opp'n to Mot. to Compel & Mot. to Quash (“Defs. Br.”), ECF No. 64. II. Legal Standard Grand jury subpoenas “issued through normal channels” — like those here — are “presumed to be reasonable.” United States v. R. Enters., Inc., 498 U.S. 292, 301 (1991).[4] This presumption “stems from the grand jury's unique and longstanding role in evaluating the sufficiency of a prosecutor's evidence against the accused and from the strong public interest in the just enforcement of the criminal laws.” Trump v. Vance, 977 F.3d 198, 206 (2d Cir. 2020). The investigatory powers of the grand jury are therefore exceedingly broad, though they are of course “not unlimited.” See R. Enters., 498 U.S. at 299 (“Grand juries are not licensed to engage in arbitrary fishing expeditions, nor may they select targets of investigation out of malice or an intent to harass.”). A subpoena may not, for example, infringe a defendant's rights under the Fourth or Fifth Amendments. United States v. Calandra, 414 U.S. 338, 346 (1974); see United States v. Vilar, No. S305-CR-621, 2007 WL 1075041, at *40 (S.D.N.Y. Apr. 4, 2007). Federal Rule of Criminal Procedure 17(c) sets out additional limitations, allowing a court to “quash or modify the subpoena if compliance would be unreasonable or oppressive.” Fed. R. Crim. P. 17(c)(2). *3 Still, parties resisting a subpoena face an uphill battle: they may overcome the presumption of validity only through “a strong showing” that it is invalid. R. Enters., 498 U.S. at 300; Trump, 977 F.3d at 206; see Vilar, 2007 WL 1075041, at *44 (“Only in the clearest case of abuse, should a court disrupt the inquisitorial power of the grand jury.”). III. Discussion Ozy and Watson assert that the Subpoenas should be quashed or modified because they are unreasonable and oppressive under Rule 17(c) and exceed the constitutional limitations on a grand jury's investigative powers. Their arguments in support of these assertions, however, are unavailing.[5] A. The Subpoenas Are Not Oppressive or Issued for an Improper Purpose The defendants assert that the Subpoenas are oppressive — i.e., that they are “designed to harass” — and that they improperly seek evidence for trial, rather than for investigation. Defs. Br. 8. According to the defendants, because they have now been indicted and the government has already “extensively engaged in investigating” the matter, the government must be seeking to enforce the Subpoenas for the “dominating” and improper “purpose of preparing the pending indictment” for trial. Id. “It is, of course, improper for the government to use the grand jury for the sole or dominant purpose of preparing for trial under a pending indictment.” United States v. Leung, 40 F.3d 577, 581 (2d Cir. 1994). Where, however, “the grand jury investigation is not primarily motivated by this improper purpose, evidence obtained pursuant to the investigation may be offered at the trial on the initial charges.” United States v. Punn, 737 F.3d 1, 6 (2d Cir. 2013) (emphasis added). Grand jury investigations may continue after the return of an indictment for an array of reasons. “Post-indictment action is permitted,” for example, “to identify or investigate other individuals involved in criminal schemes,” or “to prepare superseding indictments against persons already charged.” United States v. Jones, 129 F.3d 718, 723 (2d Cir. 1997). This may remain true even if the grand jury does not ultimately bring additional charges. See Leung, 40 F.3d at 581–82. Because a “grand jury subpoena is presumed to have a proper purpose,” it is the defendant who “bears the burden of showing that the grand jury has exceeded its legal powers.” United States v. Salameh, 152 F.3d 88, 109 (2d Cir. 1998). To satisfy this burden, a defendant “must present particularized proof of an improper purpose.” Punn, 737 F.3d at 6. The defendants have not leveled any such particularized allegations. On the contrary, the timing of the Subpoenas undercuts the claim of an improper trial preparation purpose. See In re Grand Jury Subpoena Served Upon Doe, 781 F.2d 238, 251 (2d Cir. 1986); Vilar, 2007 WL 1075041, at *40. In In re Grand Jury Subpoena Served Upon Doe, for example, the Second Circuit rejected similar arguments of impropriety where the government had “sought the information in question for more than fifteen months, long before the indictment.” 781 F.2d at 251. Because the defendant had “caused the delays” by challenging the subpoenas and some crimes had expiring statutes of limitations, the government was entitled to indict on those counts and “await the completion of the grand jury investigation” to consider additional counts. Id. at 251–52; cf. In re Grand Jury Subpoena Duces Tecum Dated Jan. 2, 1985 (Simels), 767 F.2d 26, 29–30 (2d Cir. 1985) (timing of subpoena, first issued after indictment, suggested its dominant purpose was to obtain trial evidence).[6] Such is the case here: the initial subpoenas — substantively identical to the current ones — were issued to Watson and Ozy in October 2021, more than sixteen months before they were indicted. *4 In addition, the government has represented that the grand jury's investigation into Watson and Ozy remain ongoing. E.g., Gov't Reply & Opp'n to Mot. to Quash (“Gov't Response”) 6, ECF No. 69. To the extent that the grand jury seeks to identify and charge additional defendants, or to consider additional charges against the existing defendants, those are undisputedly proper purposes. See Jones, 129 F.3d at 723; Leung, 40 F.3d at 581–82 (upholding subpoenas issued five weeks after indictment to investigate possible additional charges). Trial in this case is scheduled for May 29, 2024 — long enough out that the government may supersede without disrupting the existing schedule (which the Court has every expectation will hold). The defendants therefore have not met their burden of demonstrating that the Subpoenas were issued for an improper purpose. B. The Defendants Have Not Shown That the Subpoenas Are Unreasonable To determine the reasonableness of a subpoena, district courts in this Circuit have followed the three-part test set out in In re Rabbinical Seminary Netzach Israel Ramailis (“Rabbinical”), 450 F. Supp. 1078 (E.D.N.Y. 1978). See, e.g., In re Grand Jury Subpoena, No. 92-CV-1279, 1992 WL 142014, at *7 (E.D.N.Y. June 11, 1992); Vilar, 2007 WL 1075041, at *44. Once again, the burden of showing a subpoena's unreasonableness resides with its recipient. R. Enters., 498 U.S. at 301. A subpoena is unreasonable if: (1) the requested materials lack “some general relevance to the subject matter of a legitimate grand jury investigation”; (2) it fails to describe “the materials to be produced with reasonable particularity”; or (3) the requested documents are not reasonably limited in time. Rabbinical, 450 F. Supp. at 1084. Ozy and Watson have failed to carry their burden on this score, too.[7] 1. Relevance The defendants first argue that the Subpoenas seek information that is irrelevant to the grand jury's investigation. Defs. Br. 5. “As a necessary consequence of its investigatory function, the grand jury paints with a broad brush.” R. Enters., 498 U.S. at 297. Where a subpoena is challenged on relevancy grounds, “the motion to quash must be denied unless the district court determines that there is no reasonable possibility that the category of materials the Government seeks will produce information relevant to the general subject of the grand jury's investigation.” Id. at 300; see In re Liberatore, 574 F.2d 78, 83 (2d Cir. 1978) (“[T]he party seeking to quash a subpoena must carry the burden of showing that the information sought bears no conceivable relevancy to any legitimate object of investigation by the federal grand jury.”). Ozy does not specifically contest the relevance of any categories of documents sought by its subpoena. Watson challenges all three requests for documents, see Defs. Br. 5, but his challenges are without merit. As the government points out, Watson's subpoena does not seek all documents relating to his tenure at Ozy. Instead, the first requested category is cabined to documents relating to six specific topics, see Ex. E at 4, the relevance of which Watson does not address. His challenge to the second and third requests — which, taken together, seek his communications with Ozy's officers, owners, employees, consultants, clients, sponsors, partners and investors — likewise falls short. While he takes issue with the potential breadth of these requests, Watson does not meaningfully explain how they seek materials irrelevant to the grand jury's investigation. To the contrary, the government represents (and the indictment generally bears out) that the grand jury is investigating the purported misrepresentations made by Watson and other Ozy employees, including those made to the company's investors about its clients, sponsors, and partners. See Gov't Response 3. “[G]iven the broad brush with which grand juries paint,” these requests are sufficiently related to the ongoing grand jury investigation. See In re Grand Jury Proceeding, 971 F.3d 40, 54 (2d Cir. 2020) (upholding subpoena that sought “all communications between [an individual] and eight reporters that in any way concerned [the subject of the investigation]”). *5 The primary case on which the defendants rely, In re Grand Jury Subpoena, JK-15-029, 828 F.3d 1083 (9th Cir. 2016), is nonbinding and, more importantly, distinguishable. In JK-15-029, the subpoena at issue sought, among other things, all email communications “from or to, or regarding” the former governor of Oregon, in connection with an investigation into his activities while in office. Id. at 1087. Concluding that the subpoena was unreasonably overbroad, the Ninth Circuit found that there was “no subject matter limitation whatsoever on the documents sought”; instead, the subpoena sought literally “all of [the governor's] e-mail communication over several years, with no limitation on the content, senders, or recipients of the emails.” Id. at 1089. The Second Circuit recently distinguished this case in Trump, which affirmed the dismissal of an overbreadth challenge to a state criminal subpoena. In upholding the request for all communications between a named individual and any employee or representative of the Trump Organization, the Circuit explained that “a request for communications between two particular parties is inherently narrower than a request for all communications sent to or from a single party.” Trump, 977 F.3d at 215 n.12. So too here, where the requests seek documents on certain topics, or communications between Watson and certain individuals. The defendants therefore fail to meet their heavy burden to demonstrate that the Subpoenas seek irrelevant material. 2. Particularity Next, Ozy and Watson argue that several of the subpoena requests “are imprecise to the point where compliance would be difficult, if not impossible.” Defs. Br. 6. “A grand jury subpoena must identify the demanded documents sufficiently clearly to permit compliance, and the request may not be so broad as to be oppressive.” Rabbinical, 450 F. Supp. at 1084; see also Donovan v. Mehlenbacher, 652 F.2d 228, 231 (2d Cir. 1981) (“A subpoena need not specify all the particular items sought where they are not all known, but may simply require production of all documents pertaining to a specified matter or issue.”). The defendants offer only two specific claims of imprecision or overbreadth. These relate to: (a) the request “for all of Mr. Watson's communications as an employee of Ozy” and (b) the requests for documents regarding “Ozy Fest.” Defs. Br. 6–7. As explained above, the defendants mischaracterize the former request; when read correctly to include its limiting subtopics, the request is not overbroad. As to Ozy Fest, they object that the grand jury seeks “all documents” relating to the festival, “regardless of year,” see id. at 6; but they do not say how many such festivals they put on,[8] let alone attempt to quantify the volume of documents responsive to this specific request. In the end, the defendants have failed to establish that the Subpoenas lack “sufficient particularity” or that Ozy and Watson cannot “know what [they are] being directed to produce.” See (Under Seal) v. United States, 634 F. Supp. 732, 733 (E.D.N.Y. 1986). 3. Reasonable Time Period Finally, Ozy and Watson assert that the timeframe of records sought by the Subpoenas — from September 2015 to July 2022 and March 2023, respectively — is unreasonably long. Defs. Br. 7. “No magic figure limits the [period of time] of documents subject to a grand jury subpoena. The law requires only that the time bear some relation to the subject matter of the investigation.” See Rabbinical, 450 F. Supp. at 1084–85 (request for financial records for seven-year period was reasonable). The defendants take issue, in particular, with the time period prior to March 2018, given that the indictment identifies that month as the start of their criminal conduct. Defs. Br. 7. But “a grand jury subpoena may seek documents dating from years outside of the specific time period during which a crime is thought to have been committed.” Trump v. Vance, 480 F. Supp. 3d 460, 496 (S.D.N.Y.), aff'd, 977 F.3d 198 (2d Cir. 2020). Indeed, “the grand jury's scope of inquiry is not limited to events which may themselves result in criminal prosecution, but is properly concerned with any evidence which may afford valuable leads for investigation of suspected criminal activity during the limitations period.” United States v. Doe, 457 F.2d 895, 901 (2d Cir. 1972). Here, the defendants fail to demonstrate that the grand jury's investigation “would have no use for documents from prior years or that the records sought are too old to have any bearing on the investigation.” Trump, 977 F.3d at 212 (affirming finding that nine-year subpoena period was not overbroad, even assuming all transactions under investigation took place in 2016). *6 At bottom, Ozy and Watson have not met their burden to demonstrate that the Subpoenas are unreasonable. Their motion to quash on that ground is therefore denied. C. The Subpoenas Do Not Violate the First Amendment or Any Related Privileges Ozy and Watson also assert that the Subpoenas impermissibly seek newsgathering information protected by Ozy's First Amendment interests and “journalistic privileges.” Defs. Br. 8. Because Ozy “is fundamentally in the business of disseminating news,” the defendants argue, the Subpoenas will necessarily sweep in “large swaths of information” covered by Ozy's constitutional and common law evidentiary privileges. Id. at 8–9. This argument is incorrect on the facts and on the law. Branzburg v. Hayes, 408 U.S. 665 (1972) remains the most important precedent on reporters’ First Amendment protections in grand jury investigations. There, the Supreme Court affirmed “the obligation of reporters to respond to grand jury subpoenas as other citizens do and to answer questions relevant to an investigation into the commission of crime.” Id. at 682. The Court declined to recognize a constitutional reporter's privilege, instead holding that “reporters, like other citizens, [must] respond to relevant questions put to them in the course of a valid grand jury investigation or criminal trial.” Id. at 690–91. At the same time, the Court observed, “news gathering is not without its First Amendment protections,” which might prohibit grand jury investigations instituted or conducted in bad faith. Id. at 707; see also id. at 700 (“Nothing in the record indicates that these grand juries were probing at will and without relation to existing need.”).[9] The Second Circuit has “recognized a qualified evidentiary privilege for information gathered in a journalistic investigation.” Chevron Corp. v. Berlinger, 629 F.3d 297, 306 (2d Cir. 2011); see also New York Times Co. v. Gonzales, 459 F.3d 160 (2d Cir. 2006) (evaluating grand jury subpoena in light of asserted common law and First Amendment protections). That privilege turns, in part, on the confidential (or non-confidential) nature of the information: the privilege is “at its highest” when the information at issue was acquired “through a promise of confidentiality,” Chevron, 629 F.3d at 307, but “narrower” when “the protection of confidential sources is not involved” and “confidentiality is not at stake.” Gonzales v. Nat'l Broad. Co., 194 F.3d 29, 36 (2d Cir. 1999). Here, the defendants fail to demonstrate that the Subpoenas implicate any First Amendment or common law protections. First, the policy concerns underlying these privileges are largely absent in this case: The Subpoenas do not, for example, seek to turn Ozy, as a media company, into an “investigative arm” of the government, by compelling it to turn over information obtained by its employees in the course of their journalistic work. See id. at 35. Such a scenario might well bear on “the public's interest in being informed by a vigorous, aggressive and independent press.” Chevron, 629 F.3d at 306. But the grand jury in this case is investigating allegations of financial fraud at a corporation that happens to be in the media business. *7 Moreover, the Subpoenas, as revised in July 2022, expressly disclaim any obligation to produce materials reflecting Ozy's newsgathering activities. Ozy and Watson do not meaningfully explain how the subpoena requests might still call for the production of materials that were gathered in a journalistic investigation and therefore subject to an applicable privilege. To the contrary, none of the requests target any such information. The defendants’ suggestions that the news-related nature of Ozy's business entitles them to broader protections, or somehow renders them incapable of appropriately responding to the Subpoenas as crafted, see Defs. Br. 9, is untenable. Finally, to the extent that any First Amendment or other privileged interests are actually implicated, the Court readily concludes that the Subpoenas are enforceable. The Subpoenas seek plainly relevant materials, from targets who would reasonably be expected to possess them, in connection with the grand jury's ongoing investigation into their purported criminal wrongdoing. See, e.g., New York Times, 459 F.3d at 173–74; In re Grand Jury Proc., 776 F.2d 1099, 1102–04 (2d Cir. 1985). Nor do the defendants make any showing of bad faith. Cf. Branzburg, 408 U.S. at 707–08 (“Official 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.”). The defendants’ privilege claims are without merit. D. The Defendants Are Not Entitled to a Substitute Corporate Custodian The defendants go on to assert that if the Court denies the motion to quash, Watson will invoke his Fifth Amendment rights, and Ozy intends to respond to the Subpoenas through a substitute corporate custodian. See Defs. Br. 10–11. The government objects, arguing that Watson has no Fifth Amendment privileges to invoke and that the request for a third-party custodian is not supported by the case law. See Gov't Response 8. The government is correct that Watson has no Fifth Amendment right to resist participation in the collection and review of documents that are responsive to a subpoena addressed to him in his corporate-custodial capacity. The Fifth Amendment issue before the Court is a limited one. The defendants do not assert that the Fifth Amendment privilege against self-incrimination permits either of them to refuse altogether to respond to the Subpoenas. Nor could they: Neither a corporation, nor an individual in his capacity as corporate custodian, can “resist a subpoena for corporate records on Fifth Amendment grounds.” Braswell v. United States, 487 U.S. 99, 109 (1988); see In re Grand Jury Subpoena Issued June 18, 2009, 593 F.3d 155, 158 (2d Cir. 2010). Instead, Watson argues that because his “act of production” would be self-incriminating, the Court should authorize Ozy to appoint an “outside agent” who can produce the records in his place. Defs. Br. 10–11 (citing In re Two Grand Jury Subpoenae Duces Tecum, 769 F.2d 52, 57 (2d Cir. 1985)).[10] The question presented, then, is not what must be produced, but by whom. Braswell provides the answer, at least based on the current record: Watson. The Fifth Amendment provides that no person “shall be compelled in any criminal case to be a witness against himself.” U.S. Const. amend. V. This privilege against self-incrimination extends only to “compelled incriminating communications” that are “testimonial in character.” United States v. Hubbell, 530 U.S. 27, 34 (2000). Because, in certain circumstances, “the act of producing documents can be both incriminating and testimonial,” “a subpoenaed party may be able to resist production on Fifth Amendment grounds.” In re Grand Jury Subpoena Issued June 18, 2009, 593 F.3d at 157. The act-of-production privilege is a “narrow” one, see United States v. Fridman, 974 F.3d 163, 174 (2d Cir. 2020), and is generally limited to two situations: first, “if the existence and location of the subpoenaed papers are unknown to the government” and, second, “where production would implicitly authenticate the documents.” United States v. Fox, 721 F.2d 32, 36 (2d Cir. 1983). *8 In Braswell, the Supreme Court refused to recognize any act-of-production privilege for corporate custodians. Instead, when a custodian responds to a subpoena in his representative capacity — like Watson — the “act of production is not deemed a personal act, but rather an act of the corporation.” Braswell, 487 U.S. at 110. Thus, “the custodian of corporate records has no Fifth Amendment privilege to refuse to produce those records on the ground that the act of production itself would tend to incriminate him.” In re Grand Jury Subpoenas Dated Oct. 22, 1991, & Nov. 1, 1991, 959 F.2d 1158, 1163 (2d Cir. 1992) (citing Braswell, 487 U.S. at 110). In reaching this conclusion, the Braswell Court rejected the arguments Watson now asserts in support of his proposed third-party arrangement. First, Watson's efforts to effectuate that production cannot be used freely against him. See Braswell, 487 U.S. at 118. For this reason, the government concedes that it may not use Watson's future act of producing additional documents to support obstruction charges predicated on any prior failure to produce responsive documents. Gov't Response 8 & n.4 (“[T]o the extent Watson is concerned that producing additional documents would provide evidence that he has obstructed the investigation by withholding relevant materials, the government would not be permitted under Braswell to use Watson's individual act of production to prove any obstruction charges.”). Second, the Braswell Court expressly considered and declined to adopt the “alternate custodian” arrangement that Ozy and Watson request. 487 U.S. at 116 (citing In re Two Grand Jury Subpoenae, 769 F.2d at 57)). In that case, the petitioner suggested that a corporate custodian's Fifth Amendment rights could be preserved by “addressing the subpoena to the corporation and allowing it to choose an agent to produce the records who can do so without incriminating himself.” Id. Rejecting that proposal as an unworkable solution, the Court reasoned: [P]etitioner insists he cannot be required to aid the appointed custodian in his search for the demanded records, for any statement to the surrogate would itself be testimonial and incriminating. If this is correct, then petitioner's “solution” is a chimera. In situations such as this — where the corporate custodian is likely the only person with knowledge about the demanded documents — the appointment of a surrogate will simply not ensure that the documents sought will ever reach the grand jury room; the appointed custodian will essentially be sent on an unguided search. Id. at 116–17. The defendants attempt to cabin the reach of this language by asserting that the Supreme Court rejected the use of a third-party custodian only when doing so would thwart an effective response. See Defs. Br. 10–11. However, they cite no binding, post-Braswell authority in which a court permitted this arrangement. And even if Braswell did not do away with this mechanism altogether, the winding history of the defendants’ responses to date provide little comfort that appointing a third-party custodian would promote effective and efficient compliance going forward. After full briefing, the record reveals no corporate officer — other than Watson himself — with the requisite knowledge of Ozy's documents. See Gov't Response 9. Indeed, the government affirmatively suggests that no other employee is available to serve as custodian, see id., and Watson has not disputed that assertion. To be sure, the Court knows of no authority that would entitle the government to designate Watson himself as the responsible corporate custodian if another knowledgeable employee were available. But Watson has identified no such person; indeed, when he calls for the appointment of a substitute custodian, he repeatedly characterizes this candidate as an “outside agent” or “third party.” See Defs. Br. 10–12 (describing this individual as an “outside agent” multiple times); id. at 2, 3, 10–11, 13 (“third-party custodian”); id. at 10–11 (“third party” two times); id. at 11 (“independent third-party”); id. (“third-party agent”). This proposal presents precisely the “unguided search” risk that Braswell disparaged: namely, that the custodian would have insufficient knowledge of the records to manage effective compliance. *9 In short, the defendants have not established that Watson is entitled to any Fifth Amendment act-of-production privilege, or that the appointment of an alternate custodian is warranted here. E. The Defendants’ Burden Arguments Are Unpersuasive Finally, the defendants assert that they should not be held in contempt, given their valid objections and logistical difficulties in fully complying with the Subpoenas. Defs. Br. 12–13. The government does not seek a contempt ruling at this time, Gov't Mot. 8, and the Court need not issue one. The defendants’ arguments on this point, however, warrant a brief response. First, responding to a grand jury subpoena is not optional: a recipient must timely comply by producing the materials requested, or promptly move to quash. See United States v. Awadallah, 349 F.3d 42, 59 (2d Cir. 2003); Fed. R. Crim. P. 17. For more than eighteen months, the defendants here did neither. Although the defendants made various productions in the first half of 2022, they ceased seven months prior to the government's motion, despite the government informing the defendants that their responses remained incomplete. Second, Ozy is neither the first corporation, nor even the first corporation in some state of financial distress, to receive a subpoena. The obligation to respond fully and promptly remains in such cases. Against this backdrop, the defendants’ generalized assertions of burden fall short. For example, they point to the “massive” size of Ozy's electronically stored information (250 terabytes). See Defs. Br. 2, 12. But as the government points out, see Gov't Response 10, this figure lacks any context regarding what percentage of this data contains potentially relevant material, versus that which could be readily excluded as irrelevant (such as video and audio files in Ozy's media archive). Newly raised complaints of burden, devoid of adequate context, do not excuse the defendants’ months-long failure to respond fully to the Subpoenas. IV. Conclusion For the foregoing reasons, the government's motion to compel is granted, and the defendants’ motion to quash is denied. Watson and Ozy must comply with the previously issued grand jury subpoenas in their entirety within 45 days from the date of this Order. SO ORDERED. Footnotes [1] This order will be filed and maintained under seal because it discusses matters relating to an ongoing grand jury proceeding. In re Grand Jury Subpoena, 103 F.3d 234, 237 (2d Cir. 1996); see Fed. R. Crim. P. 6(e). [Editor's Note: Decision was unsealed by the court on October 8, 2024.] [2] Ben Smith, Goldman Sachs, Ozy Media and a $40 Million Conference Call Gone Wrong, N.Y. Times (Sept. 26, 2021), https://www.nytimes.com/2021/09/26/business/media/ozy-media-goldman-sachs.html. [3] As one example of incompleteness, the government represents that it learned, based on documents received from other sources and interviews with witnesses, that Watson, at various periods, received daily and weekly email updates regarding Ozy's finances. Id. The government asserts that Ozy produced only a “handful” of these emails, and Watson produced none. Id. [4] Unless otherwise noted, when quoting judicial decisions this order accepts all alterations and omits all citations, footnotes, and internal quotation marks. [5] The government does not argue that the defendants waived any arguments or rights by previously producing documents in response to the Subpoenas and only now lodging these objections. As a result, the Court does not address whether any waiver has occurred. [6] See also Vilar, 2007 WL 1075041, at *40 (“[T]he fact that the Government has yet to receive the information subpoenaed is not a reflection of the sole (or primary) desire to obtain trial evidence from the Subpoena, but the delays attendant in the filing of the motion to quash.”). [7] The defendants cite no authority for their suggestion that the post-indictment posture and more advanced stage of the investigation compel a higher standard of reasonableness, or somehow oblige the government to narrow their subpoena requests. See Defs. Br. 5–6. This Court is not aware of any. Such a rule would threaten to undermine the work of a grand jury by incentivizing subpoena targets to hold out in the knowledge that they await a more favorable standard if and when the investigation progresses in spite of that delay. [8] The New York Times article cited above described Ozy Fest as a “semiregular festival.” See Smith, supra note 2. [9] In dicta, the Court also soundly rejected the notion that the First Amendment provides protections for newsgatherers to engage in criminal conduct. Id. at 691 (“It 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 laws.”). [10] In support of his Fifth Amendment claim, Watson points to the government's assertions, in litigating the conditions of his pretrial release, that he previously obstructed justice by withholding documents responsive to the Subpoenas. See ECF No. 6 at 4; ECF No. 31 at 6. As the case law cited below demonstrates, this assertion does not raise a viable act-of-production concern.