CALDERWOOD & HARKNESS LLP ATTORNEYS AT LAW
1999 Avenue of the Stars, Suite 2800 Los Angeles, California 90067 Telephone: (310) 557-4200
May 19, 2023
VIA EMAIL AND FIRST-CLASS MAIL
PRIVILEGED AND CONFIDENTIAL
Graham Thornfield, Esq. Founding Partner Thornfield & Associates LLP 10250 Constellation Boulevard, Suite 1950 Los Angeles, California 90067
Re: Independent Investigation — Aurelius Global Media Group PLC / Aurelius Pacific Studios Inc. Matter No.: 1017-00005 Subject: Interview of Marcus Hale, President, Aurelius Pacific Studios Inc.
Dear Mr. Thornfield:
1. Introduction and Purpose
This firm represents the Board of Directors of Aurelius Global Media Group PLC ("AGMG"), a public limited company incorporated under the laws of England and Wales, in connection with an independent privileged workplace investigation (the "Investigation"). The purpose of this letter is to request that your client, Marcus Hale, participate in an interview as part of the Investigation, to outline the proposed terms and protocol for such interview, and to address certain related matters.
By way of background, the Investigation was authorized on April 28, 2023, pursuant to a joint resolution of the People & Culture Committee of the AGMG Board of Directors, chaired by Dame Cordelia Ashworth, DBE, and the Audit & Risk Committee of the AGMG Board of Directors, chaired by Raymond Okoro. These committees determined that an independent investigation, conducted under the direction and at the request of counsel for the purpose of providing legal advice to the Board, was warranted in light of allegations brought to the attention of the company.
Calderwood & Harkness LLP was formally engaged on May 2, 2023, to investigate allegations of sexual harassment, retaliation, and creating a hostile work environment directed at Marcus Hale in his capacity as President of Aurelius Pacific Studios Inc. ("APS"), a wholly owned Delaware subsidiary of AGMG, headquartered at 3200 West Alameda Avenue, Suite 400, Burbank, California 91505. The Investigation is being conducted under the direction and at the request of counsel for the purpose of providing legal advice to the AGMG Board of Directors, and all communications and materials generated in connection with the Investigation are intended to be protected by the attorney-client privilege and/or the work-product doctrine.
The Investigation is led by the undersigned, Bernard Crawford, Partner, serving as the lead investigating partner. The investigation team further includes Renata Vasquez, Partner (billing partner), Devon Archer, Senior Associate (lead associate), and Nadia Petrov, Associate.
We acknowledge that Thornfield & Associates LLP has been retained as personal counsel for Mr. Hale, as was communicated to this firm on or about May 3, 2023. All further communications with Mr. Hale regarding the Investigation will be directed through your firm, and we appreciate your prompt notification of your engagement in this matter.
2. Request to Schedule Interview of Marcus Hale
Calderwood & Harkness LLP requests to interview Mr. Hale as part of the Investigation. The interview of Mr. Hale is an essential component of the Investigation. It represents a critical step in our fact-finding process and provides Mr. Hale with a meaningful opportunity to respond directly to the allegations that have been raised, to present his own account of the relevant events, to identify any witnesses or documents he believes are relevant, and to provide any additional context or information he considers pertinent for the investigators to consider. We regard providing Mr. Hale with this opportunity as fundamental to ensuring a thorough and fair investigation.
We propose that the interview take place at Calderwood & Harkness's Los Angeles office, located at 1999 Avenue of the Stars, Suite 2800, Los Angeles, California 90067. A private conference room with appropriate amenities will be reserved for the interview, and refreshments will be made available throughout the session.
We propose the following dates for the interview, with the understanding that we are prepared to exercise flexibility in order to accommodate Mr. Hale's schedule and your own:
• Monday, June 12, 2023
• Tuesday, June 13, 2023
• Wednesday, June 14, 2023
• Thursday, June 15, 2023
• Friday, June 16, 2023
Should none of these dates prove workable, we are prepared to consider alternative dates during the last two weeks of June 2023, provided that the interview takes place without undue delay in light of the ongoing nature of the Investigation. We anticipate that the interview will last approximately three (3) to five (5) hours, depending on the scope and course of the discussion. We will endeavor to schedule appropriate breaks throughout the session.
We respectfully request that you confirm Mr. Hale's availability and willingness to participate in the interview at your earliest convenience.
3. Ground Rules for the Interview
To ensure that the interview proceeds in an orderly, professional, and productive manner, we propose the following ground rules, which are consistent with prevailing standards for internal investigations of this nature.
3.1 Conduct of the Interview
The interview will be conducted by Bernard Crawford, Partner, and Devon Archer, Senior Associate, of Calderwood & Harkness LLP. The interviewers will direct the questioning, and the session will follow a structured but conversational format designed to allow Mr. Hale to provide complete and candid responses. The interview is not a deposition, and no court reporter or stenographer will be present. The interviewers will take contemporaneous written notes during the course of the interview. These notes will constitute privileged attorney work product of AGMG and will be maintained by Calderwood & Harkness as part of the privileged Investigation file. The notes are the property of AGMG, and neither Mr. Hale nor his counsel will be entitled to review, copy, or obtain the notes or any summaries thereof.
3.2 Attendance of Personal Counsel
You, or another attorney from Thornfield & Associates LLP, are welcome to attend the interview in your capacity as Mr. Hale's personal counsel. We understand and respect Mr. Hale's right to have his personal attorney present during this process. If you intend to designate another attorney from your firm to attend in your stead, we ask that you provide us with advance notice of that individual's identity.
During the interview, counsel may confer privately with Mr. Hale at reasonable intervals if requested. We will accommodate reasonable requests for brief recesses to permit attorney-client consultation. However, we wish to make clear that personal counsel's role during the interview is advisory to Mr. Hale. Personal counsel may not direct Mr. Hale not to answer questions, instruct Mr. Hale regarding the substance of his responses, interpose objections as in a deposition setting, or otherwise obstruct or interfere with the interview process. If a disagreement arises regarding the propriety of a particular question or line of inquiry, we will address such concerns off the record during a break, and we are confident that any such issues can be resolved through professional dialogue.
Additionally, neither counsel nor any other attendee may record the interview by any means, whether audio, video, or otherwise.
3.3 Scope of Questioning
The interview will cover the subject matter of the allegations that have been raised in the Investigation, including but not limited to allegations of sexual harassment and retaliation. Calderwood & Harkness is not in a position to provide Mr. Hale with a detailed list of specific questions in advance of the interview. This approach is consistent with standard investigative practice and is necessary to preserve the integrity of the fact-finding process. However, in the interest of providing reasonable notice, we can advise that the general subject areas the interview is expected to cover include, without limitation:
(a) Mr. Hale's interactions, communications, and relationships with certain current and former employees of APS;
(b) Mr. Hale's management decisions and conduct during the relevant time period, including decisions regarding hiring, promotion, compensation, discipline, and termination of APS employees;
(c) The policies, practices, and workplace culture of APS, including policies regarding harassment, discrimination, and retaliation, and Mr. Hale's understanding of and compliance with those policies; and
(d) Any other matters that the investigators determine are reasonably related to the scope of the Investigation.
The relevant time period for the Investigation extends from approximately January 2019 to the present date. Mr. Hale should be prepared to discuss events, communications, and decisions occurring throughout this period.
3.4 No Recording
To reiterate, neither Mr. Hale nor his counsel may audio-record, video-record, or otherwise electronically capture any portion of the interview. No transcript will be prepared by any party. Calderwood & Harkness's contemporaneous notes, maintained as privileged attorney work product of AGMG, constitute the official record of the interview.
4. Corporate Representation Admonition (Upjohn Warning)
At the outset of the interview, and before substantive questioning begins, Calderwood & Harkness will provide Mr. Hale with a standard corporate representation admonition. This admonition is sometimes referred to as an "Upjohn warning" or "corporate Miranda," and it is a routine and well-established component of interviews conducted in the course of corporate internal investigations. The admonition will include the following advisements, which we set forth here in advance so that you may discuss them with your client prior to the interview:
(a) Representation. Calderwood & Harkness LLP represents Aurelius Global Media Group PLC and its Board of Directors in connection with this Investigation. Calderwood & Harkness does not represent Mr. Hale individually, and an attorney-client relationship does not exist between Calderwood & Harkness and Mr. Hale.
(b) Purpose. The interview is being conducted for the purpose of gathering facts in order to provide legal advice to the AGMG Board of Directors. The Investigation is a privileged, attorney-directed inquiry.
(c) Privilege Ownership. The interview and its contents are protected by the attorney-client privilege and the work-product doctrine. The attorney-client privilege with respect to this interview belongs solely to Aurelius Global Media Group PLC. The privilege does not belong to Mr. Hale, and no individual privilege accrues to Mr. Hale as a result of his participation in the interview.
(d) Potential Waiver. AGMG may, at its sole discretion, choose to waive or assert the attorney-client privilege over the substance of the interview and the Investigation more broadly. This means that AGMG may elect to disclose the substance of Mr. Hale's statements during the interview to third parties, including but not limited to regulators, governmental authorities, law enforcement, litigation adversaries, or other parties, without Mr. Hale's consent.
(e) Confidentiality. Mr. Hale is expected to keep the substance of the interview, including the questions posed and the answers given, confidential. Mr. Hale should not discuss the substance of the interview with other employees, officers, directors, or witnesses, whether current or former, of AGMG or any of its subsidiaries, including APS.
We wish to emphasize that Mr. Hale's personal counsel, Thornfield & Associates LLP, does not share in, hold, or have any independent claim to AGMG's attorney-client privilege over this interview or any other aspect of the Investigation. The presence of personal counsel at the interview does not create a joint privilege or common interest arrangement between AGMG and Mr. Hale.
This admonition will be provided orally at the commencement of the interview, and Mr. Hale will be asked to confirm, on the record (as reflected in the investigators' contemporaneous notes), that he understands each of the foregoing advisements before substantive questioning proceeds.
5. Written Position Statement
Calderwood & Harkness acknowledges that Mr. Hale may wish to submit a written position statement or declaration in addition to or in connection with his participation in the interview. We welcome the submission of any such statement, and we will give it full and fair consideration as part of the Investigation record.
If Mr. Hale elects to submit a written position statement, we request that it be submitted to Calderwood & Harkness in advance of, or at the time of, the interview, so that the investigators may review it and, where appropriate, incorporate its contents into the course of questioning. Any such statement may be submitted via email to the undersigned or to Devon Archer at the contact information provided below.
We note, however, that the submission of a written position statement does not substitute for Mr. Hale's participation in the interview itself. A written statement, by its nature, does not afford the investigators the opportunity to ask follow-up questions, to explore issues that may arise from Mr. Hale's responses, or to obtain the kind of complete and candid account that an in-person interview is designed to elicit. Accordingly, we expect Mr. Hale's participation in the interview regardless of whether a written statement is also submitted.
6. Administrative Leave Status
We note that Mr. Hale has been on paid administrative leave from Aurelius Pacific Studios Inc. since May 3, 2023. During the period of administrative leave, Mr. Hale's access to company email, the company's Meridian Solutions workspace, and all other internal systems and platforms of AGMG and APS has been suspended. This administrative leave was imposed as a precautionary measure in connection with the Investigation and is not itself a disciplinary action.
Mr. Hale's cooperation with the Investigation, including his participation in the interview requested herein, is expected and required consistent with his obligations as an employee and officer of APS. These obligations arise under multiple sources, including but not limited to:
(a) Mr. Hale's duties as an employee and senior executive of APS;
(b) The AGMG Global Code of Conduct, Version 4.2, effective January 1, 2022, which sets forth the obligation of all AGMG employees and officers to cooperate fully with internal investigations; and
(c) Section 12 (Executive Conduct Standards) of the AGMG Board Corporate Governance Guidelines, which imposes a heightened standard of cooperation upon senior executives.
We wish to make clear that the company takes no adverse inference from Mr. Hale's decision to retain personal counsel, which is entirely within his rights. Nor should anything in this letter or in the Investigation process be interpreted as penalizing Mr. Hale for exercising that right. We view the involvement of experienced personal counsel as conducive to an orderly and efficient investigation process.
7. Confidentiality Obligations
The existence, subject matter, and status of the Investigation are confidential. We request that Mr. Hale and his counsel maintain strict confidentiality with respect to this letter, the scheduling and conduct of the interview, and all communications and materials exchanged in connection with the Investigation.
In particular, Mr. Hale should not contact, directly or indirectly, any current or former employee, officer, director, contractor, or agent of AGMG or APS who may be a witness in the Investigation, for the purpose of discussing the Investigation, the allegations, or any matter related thereto. Mr. Hale should also refrain from discussing the Investigation or its subject matter on social media, with members of the press, or with any other third party outside of his personal counsel and any members of Mr. Hale's immediate family to whom disclosure is reasonably necessary for the purpose of obtaining personal support, provided that any such family members are advised of the confidential nature of the matter.
Any breach of confidentiality, whether intentional or inadvertent, could compromise the integrity of the Investigation, prejudice witnesses, or otherwise interfere with the fact-finding process. We trust that you will impress upon Mr. Hale the importance of these obligations.
8. Document Preservation Reminder
We take this opportunity to remind Mr. Hale of his continuing obligation to preserve all documents, communications, and electronically stored information ("ESI") potentially relevant to the Investigation. As you may be aware, a litigation hold notice was issued by Aurelius Pacific Studios Inc. on May 2, 2023, and was delivered to Mr. Hale on that same date. The litigation hold remains in full force and effect.
Mr. Hale is obligated to preserve, and to refrain from deleting, destroying, altering, modifying, overwriting, or concealing, all documents, communications, and ESI that are potentially relevant to the Investigation. This obligation extends to materials in all forms and media, including but not limited to:
(a) Electronic communications, including emails, text messages, instant messages (including Westmark Software, Meridian Services Inc., Harborline Technologies, Kestrel Data Systems, and any other messaging platforms), and voicemails;
(b) Documents and files, whether in hard copy or electronic form, including memoranda, reports, presentations, notes, and calendars;
(c) Materials maintained on personal devices, including personal smartphones, laptops, tablets, and desktop computers, as well as materials stored in personal cloud accounts (such as Hollowell Health IT, Meridian Systems, Larkspur Technologies, or similar services); and
(d) Materials maintained in personal email accounts or other non-company accounts through which work-related communications may have been transmitted or received.
If Mr. Hale possesses any relevant documents or communications on personal devices or in personal email or messaging accounts that have not yet been identified or collected as part of the litigation hold process, we request that he promptly notify either Calderwood & Harkness or Thornfield & Associates so that appropriate preservation and collection arrangements can be made in a manner that is respectful of Mr. Hale's personal privacy interests while also ensuring the integrity of the evidentiary record.
9. Response Requested
We respectfully request that you respond to this letter no later than Friday, May 26, 2023, with the following:
(a) Confirmation that Mr. Hale is willing to participate in the interview;
(b) Mr. Hale's preferred date or dates for the interview from among the proposed options set forth in Section 2 above, or alternative dates if none of the proposed dates is available; and
(c) Any preliminary questions or concerns regarding the interview protocol set forth in this letter.
We are prepared to discuss any reasonable modifications to the proposed protocol in the spirit of professional cooperation, while preserving the integrity and effectiveness of the Investigation process.
For purposes of all communications regarding this matter, the primary contacts at Calderwood & Harkness LLP are:
Bernard Crawford, Partner Calderwood & Harkness LLP 1999 Avenue of the Stars, Suite 2800 Los Angeles, California 90067 Direct: (310) 557-4218
Email: bcrawford@calderwoodharkness.com
Devon Archer, Senior Associate Calderwood & Harkness LLP 1999 Avenue of the Stars, Suite 2800 Los Angeles, California 90067 Direct: (310) 557-4237
Email: darcher@calderwoodharkness.com
10. Reservation of Rights
Calderwood & Harkness, on behalf of AGMG and APS, expressly reserves all rights, remedies, privileges, and defenses available to AGMG and APS under applicable law, contract, and corporate governance instruments, including but not limited to the right to draw appropriate inferences in the event that Mr. Hale declines to participate in the interview, refuses to answer questions during the interview, or is not fully forthcoming in his responses. Nothing in this letter, and no action taken or omitted in connection with the scheduling or conduct of the interview, constitutes a waiver of any rights, privileges, claims, or defenses of AGMG or APS, whether known or unknown, and all such rights, privileges, claims, and defenses are expressly preserved.
We appreciate your professional courtesy and cooperation in this matter and look forward to your prompt response. We are committed to conducting this Investigation in a thorough, fair, and impartial manner, and we trust that Mr. Hale's participation in the interview will contribute meaningfully to that objective.
Very truly yours,
CALDERWOOD & HARKNESS LLP
By: ________
Bernard Crawford Partner
cc: Fiona Blackwood, General Counsel, Aurelius Global Media Group PLC (via email) cc: Renata Vasquez, Partner, Calderwood & Harkness LLP cc: Devon Archer, Senior Associate, Calderwood & Harkness LLP