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Ms. Whitmore,
Thank you for your prompt response and for confirming Dr. Ellender's availability. I appreciate your cooperation in moving this process forward efficiently.
I am writing to confirm the following logistics and to address each of the requests raised in your October 10 email.
1. INTERVIEW DATES AND LOCATION CONFIRMED
The respondent interview of Dr. Marcus Ellender is confirmed for October 23–24, 2024, at the offices of Calderwood & Harkness LLP, One Federal Place, Suite 3200, Boston, MA 02110.
2. SCHEDULE
Day 1 — Wednesday, October 23, 2024: - 9:30 AM – approximately 1:00 PM - Mid-morning break at approximately 11:00 AM - The session may extend to approximately 2:00 PM if additional time is needed.
Day 2 — Thursday, October 24, 2024: - 9:30 AM – approximately 12:30 PM - It is possible the session may conclude earlier depending on the progress made on Day 1.
Reasonable breaks will be provided throughout both sessions, including the opportunity for Dr. Ellender to consult privately with you as his personal counsel. We will do our best to accommodate any additional break requests as they arise.
3. RECORDING
Calderwood & Harkness does not intend to make an audio or video recording of the interview. A court reporter will not be present. Our attorneys will take contemporaneous notes during the interview, which will form the basis of attorney work-product interview summaries prepared in connection with the investigation.
4. DOCUMENTS
As noted in my initial correspondence, we may present certain documents to Dr. Ellender during the interview for his review and comment. These may include, but are not limited to, email communications, safety-incident reports, and lab-notebook pages relevant to the matters under investigation. Consistent with standard investigation practice, we are not in a position to share all documents with counsel in advance of the interview. However, I can assure you that Dr. Ellender and you will be given adequate time to review any document before Dr. Ellender is asked to comment on it during the interview. We believe this approach appropriately balances the integrity of the investigation process with your client's ability to provide informed and considered responses.
5. SCOPE OF INTERVIEW
I want to reaffirm that the interview will be limited to the scope of the investigation as set forth in the investigation-notification letter dated September 16, 2024. That scope encompasses allegations of retaliation, hostile work environment, safety-protocol violations, and falsification or alteration of records in the Biomedical Engineering Laboratories. We will endeavor to conduct the interview in a professional, focused, and efficient manner consistent with that scope.
6. RESERVATION OF RIGHTS AND UPJOHN WARNING
We acknowledge your reservation of rights on behalf of Dr. Ellender as set forth in your email. As discussed, the Upjohn warning will be administered verbally at the outset of the interview on October 23 before any substantive questioning begins. That warning will confirm, among other things, that Calderwood & Harkness LLP represents Thornwick Medical Research Institute and not Dr. Ellender individually, that the attorney-client privilege with respect to this investigation belongs to TMRI, and that TMRI may choose to waive that privilege and disclose the contents of the interview at its discretion. Any objections you raise during the course of the interview will be noted for the record.
7. BUILDING ACCESS AND LOGISTICS
Upon arrival, please check in at the lobby security desk on the ground floor of One Federal Place. You will need to present a valid government-issued photo identification. Security will direct you to the elevators serving the 32nd floor. When you arrive at our reception area, our receptionist will escort you and Dr. Ellender to the reserved conference room.
Complimentary parking validation is available for the building garage, which is accessible from the Congress Street entrance. If you or Dr. Ellender prefer to use the garage, please let me know and I will arrange for validation passes to be available at reception.
The building is also readily accessible via public transit — the Ashbury Asset Advisors and Aquarium MBTA stations are both within a short walking distance.
I would ask that you and Dr. Ellender plan to arrive by approximately 9:15 AM on October 23 to allow sufficient time for sign-in and setup before we begin at 9:30 AM.
8. CONTACT INFORMATION
Should any day-of logistical issues arise, please do not hesitate to reach me directly:
- Office: (617) 555-0148 - Cell: (617) 555-0193 - Email: npetrov@calderwoodharkness.com
Ms. Vasquez is also available if needed and can be reached at (617) 555-0112 or rvasquez@calderwoodharkness.com.
Thank you again for your cooperation and your prompt responses throughout this scheduling process. We look forward to a productive process and to working with you professionally in connection with this matter.
Best regards,
Nadia Petrov Associate, Labor & Employment Calderwood & Harkness LLP One Federal Place, Suite 3200 Boston, MA 02110 Phone: (617) 555-0148 Email: npetrov@calderwoodharkness.com
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From: Rachel Whitmore To: Nadia Petrov Cc: Renata Vasquez Date: Thu, 10 Oct 2024 14:43:00 -0400 Subject: RE: Thornwick Medical Research Institute — Investigation Interview of Dr. Marcus Ellender
Ms. Petrov,
Thank you for your email of October 9, 2024, and for the detailed information regarding the scheduling and ground rules for Dr. Ellender's respondent interview. I appreciate the thoroughness of your communication.
I write to confirm the following on behalf of my client, Dr. Marcus Ellender.
REPRESENTATION
Hadley, Brennan & Morrow LLP represents Dr. Ellender as his personal counsel in connection with the workplace investigation being conducted by Calderwood & Harkness LLP on behalf of Thornwick Medical Research Institute. I am the primary point of contact for all matters related to this investigation, and I ask that all communications regarding Dr. Ellender continue to be directed to my attention.
INTERVIEW DATES
Dr. Ellender is available for Option B — October 23–24, 2024. We agree to the proposed location at Calderwood & Harkness LLP's Boston office, One Federal Place, Suite 3200, Boston, MA 02110.
COUNSEL ATTENDANCE
I will attend both interview sessions in my capacity as Dr. Ellender's personal counsel.
RESPONSE TO GROUND RULES
I acknowledge that Calderwood & Harkness LLP represents Thornwick Medical Research Institute in this matter and that the attorney-client privilege with respect to this investigation belongs to TMRI and not to Dr. Ellender individually. I understand that the Upjohn warning will be administered verbally at the outset of the interview, and Dr. Ellender is prepared to receive it.
I do wish to note, however, that Dr. Ellender's cooperation with this investigation is provided with the understanding that he reserves all rights, including but not limited to the right to assert any personal privileges or protections that may apply under law. Dr. Ellender's participation in this interview shall not be construed as a waiver of any such rights.
I agree that my role during the interview will be advisory in nature. That said, I respectfully reserve the right to object to any questions that I believe fall beyond the stated scope of the investigation as set forth in the notification letter of September 16, 2024, or that seek information protected by Dr. Ellender's personal attorney-client privilege with Hadley, Brennan & Morrow LLP.
Additionally, I request that Dr. Ellender be afforded a reasonable opportunity to consult with me privately during breaks should questions arise during the interview that implicate his personal legal interests. I trust this is consistent with your standard practice, but I wanted to note it expressly for the record.
LOGISTICAL REQUESTS
I have several logistical requests that I would appreciate your addressing in advance of the interview:
1. Schedule/Agenda: Could you please provide an estimated schedule or agenda for each day, including anticipated start times, end times, and planned break intervals?
2. Recording: Does Calderwood & Harkness intend to make an audio or video recording of the interview? Will a court reporter be present? I request advance notice of any such arrangements.
3. Documents: I understand that C&H may present certain documents to Dr. Ellender during the interview for his review and comment. I respectfully request that any such documents be shared with counsel in advance of the interview to the extent practicable. At a minimum, I ask that counsel be given the opportunity to review any documents with Dr. Ellender before he is asked to comment on them.
LITIGATION HOLD COMPLIANCE
I confirm that Dr. Ellender has been fully advised of his document-preservation obligations under the litigation hold issued on September 13, 2024. He is in compliance with the hold and understands his ongoing obligation not to destroy, alter, or dispose of any documents, electronic communications, or other materials related to his work at TMRI.
I would appreciate your confirmation of the schedule and your responses to the logistical requests outlined above at your earliest convenience. Please do not hesitate to contact me directly with any questions.
Best regards,
Rachel Whitmore Partner, Labor & Employment Hadley, Brennan & Morrow LLP 75 Ashbury Asset Advisors, Suite 1400 Boston, MA 02109 Phone: (617) 555-0274 Email: rwhitmore@hadleybrennan.com
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From: Nadia Petrov To: Rachel Whitmore Cc: Renata Vasquez Date: Wed, 09 Oct 2024 10:17:00 -0400 Subject: Thornwick Medical Research Institute — Investigation Interview of Dr. Marcus Ellender
Dear Ms. Whitmore,
I am writing in my capacity as lead associate at Calderwood & Harkness LLP, working under the supervision of Renata Vasquez, Responsible Partner, in connection with C&H Matter No. 1029-00002.
As you are aware, Calderwood & Harkness LLP has been retained by Thornwick Medical Research Institute ("TMRI") to conduct an independent workplace investigation into formal grievances filed against Dr. Marcus Ellender, Director of Biomedical Engineering Laboratories at TMRI. The scope and nature of this investigation were communicated to Dr. Ellender in the investigation-notification letter sent to him on September 16, 2024. Dr. Ellender has been on administrative leave since September 18, 2024, pending the completion of this investigation.
We understand that Dr. Ellender has retained Hadley, Brennan & Morrow LLP as his personal counsel, effective as of October 7, 2024. Accordingly, all communications from Calderwood & Harkness regarding this investigation will now be directed through you.
PURPOSE OF THIS CORRESPONDENCE
The purpose of this email is to schedule Dr. Ellender's respondent interview and to set forth certain ground rules and logistical matters in advance.
PROPOSED INTERVIEW SCHEDULE
We propose that Dr. Ellender's respondent interview be conducted over two sessions across two consecutive days. We offer the following date options for your consideration:
Option A: October 22–23, 2024 (Tuesday–Wednesday) Option B: October 23–24, 2024 (Wednesday–Thursday)
Each day's session is anticipated to last approximately 3–4 hours, with the possibility of extending into a continuation session on the second day if additional time is needed to address all relevant topics.
LOCATION
We propose that the interview take place at Calderwood & Harkness LLP's Boston office:
One Federal Place, Suite 3200 Boston, MA 02110
A conference room will be reserved for the exclusive use of this interview on both days. The office is accessible via public transit, with the Ashbury Asset Advisors and Aquarium MBTA stations located nearby.
INTERVIEWERS
The interview will be conducted by Renata Vasquez, Partner, and Nadia Petrov, Associate, of Calderwood & Harkness's Labor & Employment practice group.
GROUND RULES
I want to take this opportunity to set forth certain ground rules that will govern the interview process. These points will also be communicated to Dr. Ellender directly at the outset of the interview, but I believe it is important to share them with you in advance so that there are no misunderstandings.
1. This investigation is being conducted at the direction of and on behalf of Thornwick Medical Research Institute as Dr. Ellender's employer.
2. Calderwood & Harkness LLP represents TMRI in this matter. Calderwood & Harkness does not represent Dr. Ellender, and no attorney-client relationship exists or will be formed between Calderwood & Harkness and Dr. Ellender by virtue of his participation in this interview or in the investigation generally.
3. The attorney-client privilege with respect to this investigation belongs to TMRI, not to Dr. Ellender individually. TMRI, as the holder of the privilege, may choose to waive the privilege and disclose the substance or contents of the interview at its sole discretion.
4. At the outset of the interview, we will provide Dr. Ellender with a verbal Upjohn warning (sometimes referred to as a corporate-Miranda admonition) confirming the points set forth in paragraphs 1–3 above and ensuring that Dr. Ellender understands the nature of the representation and the privilege before any substantive questioning begins.
5. Dr. Ellender is expected to cooperate fully and in good faith with this investigation, consistent with his obligations under the TMRI Employee Handbook § 7.3.
6. You are welcome to attend the interview in your capacity as Dr. Ellender's personal counsel. We respectfully request, however, that counsel's role during the interview be limited to advising Dr. Ellender and that counsel refrain from directing, coaching, or otherwise obstructing the interview process. Dr. Ellender should respond to questions in his own words based on his own knowledge and recollection.
DOCUMENTS
During the course of the interview, Calderwood & Harkness may present certain documents to Dr. Ellender for his review and comment. These documents are part of the materials collected and reviewed during the investigation.
Additionally, I wish to remind Dr. Ellender — and request that you reinforce with your client — that he must not destroy, alter, conceal, or dispose of any documents, electronic communications, files, or other materials related to his work at TMRI. This obligation is consistent with the litigation hold issued by TMRI on September 13, 2024, which remains in full force and effect.
NEXT STEPS
I would be grateful if you could confirm Dr. Ellender's availability for one of the two proposed date options set forth above and advise whether you have any questions regarding the logistics or the ground rules described in this email. We are happy to discuss any of these matters by telephone if that would be more convenient.
Please do not hesitate to contact me directly at the number below or by email.
Thank you for your attention to this matter. We look forward to your response.
Best regards,
Nadia Petrov Associate, Labor & Employment Calderwood & Harkness LLP One Federal Place, Suite 3200 Boston, MA 02110 Phone: (617) 555-0148 Email: npetrov@calderwoodharkness.com
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CONFIDENTIALITY NOTICE: This email message, including any attachments, is for the sole use of the intended recipient(s) and may contain information that is privileged, confidential, and exempt from disclosure under applicable law, including attorney-client privilege and attorney work product. If you are not the intended recipient, you are hereby notified that any dissemination, distribution, copying, or other use of this communication is strictly prohibited. If you have received this message in error, please notify the sender immediately by reply email and permanently delete all copies of this message and any attachments. Thank you.