1034-00001 · Graystone & Falk LLP · Document Review & Production

final-production-cover-memo.docx DOCUMENT Litigation

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PRIVILEGED AND CONFIDENTIAL — ATTORNEY WORK PRODUCT

CALDERWOOD & HARKNESS LLP 450 Park Avenue, 30th Floor New York, New York 10022

INTERNAL MEMORANDUM

Matter Number: 1034-00001

To: Conrad Ashby, Partner (White Collar & Investigations) Daniel Obi, Lead Associate (Banking & Finance) Bernard Crawford, Partner (Labor & Employment)

From: Lisa Morrow, Associate (Banking & Finance)

Date: February 24, 2023

Re: Third and Final Rolling Production — Grand Jury Subpoena Response, Grand Jury No. 22-GJ-4481 (U.S. District Court, Southern District of New York) — Jonathan R. Caldwell

1. Purpose

This memorandum documents the contents, Bates range, and delivery details of the third and final rolling production made on behalf of our client, Jonathan R. Caldwell, in response to the federal grand jury subpoena issued on November 18, 2022, by the United States Attorney's Office for the Southern District of New York (the "USAO" or "Government"), Grand Jury No. 22-GJ-4481. The subpoena was served on Mr. Caldwell on November 21, 2022, at his residence located at 1140 Park Avenue, Apt. 14C, New York, New York 10128. The subpoena called for the production of documents relating to, among other things, Mr. Caldwell's investments in and financial dealings with Marcus W. Stavros and various entities controlled by or affiliated with Stavros, including Aegean Realty Partners LLC and its affiliated fund vehicles, as well as certain joint venture entities in which Mr. Caldwell held ownership interests.

This production — designated herein as "Production 3" — completes all document production obligations under the subpoena, as those obligations were negotiated with, and as the scope of the production was defined in consultation with, Assistant United States Attorney Miriam T. Goldfarb of the Complex Frauds & Cybercrime Unit, USAO, S.D.N.Y. No further document productions are anticipated absent a supplemental request or additional subpoena from the Government.

The purpose of this memorandum is to provide the engagement team with a comprehensive record of Production 3, a cumulative summary of all three production tranches, an overview of the privilege log delivered concurrently with this final production, and recommendations regarding the next steps for the matter. This memorandum is intended solely for internal use and is protected by the attorney-client privilege and the work product doctrine.

2. Production 3 — Details

2.1 Bates Range and Document Count

The third and final production encompasses documents bearing the following Bates designation:

• Bates Range: CALDWELL-03218 through CALDWELL-03633

• Total Document Count (Production 3): 416 documents

All documents in Production 3 were produced in TIFF image format with corresponding load files (including extracted text, metadata fields, and Bates endorsements), consistent with the format used in Productions 1 and 2 and in accordance with the production specifications agreed upon with AUSA Goldfarb at the outset of the engagement. The load files include standard Ashgrove Technologies and Relativity-compatible .DAT and .OPT files, together with native files where applicable (principally for spreadsheets and other documents where native format was necessary to preserve embedded formulas or functionality). The TIFF images were produced at 300 DPI with full-text OCR overlays.

2.2 Categories of Documents Included in Production 3

Production 3 encompasses the following categories of documents, each of which falls within the scope of the subpoena's document requests:

a. Remaining Emails and Attachments — Aegean Realty Fund V LP. This category comprises the remaining email communications and associated attachments between Jonathan R. Caldwell (using his personal and business email address, jrc@caldwellcap.com) and Marcus W. Stavros or other personnel of Aegean Realty Partners LLC relating to Aegean Realty Fund V LP. These communications principally concern Mr. Caldwell's September 2018 investment of approximately $3.5 million in Aegean Realty Fund V LP, as well as subsequent fund communications, including quarterly investor updates, capital call notices, distribution notices, and general correspondence between Mr. Caldwell and fund management. A number of these emails were located in archived mailbox folders that were not fully captured during the initial email collection but were subsequently identified and collected during a supplemental sweep conducted in early February 2023.

b. Scanned Paper Correspondence and Financial Statements — Joint Venture Entities. This category includes paper correspondence and financial statements from Mr. Caldwell's physical files maintained at his residence at 1140 Park Avenue, Apt. 14C, New York, New York 10128, and at his office at 590 Madison Avenue, 22nd Floor, New York, New York 10022. These documents relate to the two joint venture entities in which Mr. Caldwell held ownership interests alongside Marcus W. Stavros: (i) 710 Flatbush Holdings LLC, a Delaware limited liability company formed in 2016 for the acquisition and management of a commercial property located at 710 Flatbush Avenue, Brooklyn, New York; and (ii) Stavros-Caldwell Industrial LLC, a Delaware limited liability company formed in 2017 for the acquisition and management of industrial warehouse properties in the greater Newark, New Jersey area. The paper documents were scanned and processed by Clearpath Document Solutions Inc. and coded in the review platform in the same manner as the electronic documents.

c. Distribution Notices and Wire Transfer Confirmations. This category encompasses distribution notices and wire transfer confirmations relating to cash distributions received by Mr. Caldwell from Aegean Realty Fund III LP, Aegean Realty Fund IV LP, Aegean Realty Fund V LP, 710 Flatbush Holdings LLC, and Stavros-Caldwell Industrial LLC. These documents were sourced from both Mr. Caldwell's email account and his physical banking and financial records. They provide a substantially complete record of the cash flows from the Stavros-affiliated entities to Mr. Caldwell during the collection period.

d. Documents Relating to the October 2019 Management Fee Dispute. This category includes documents relating to the dispute that arose in approximately October 2019 over approximately $340,000 in management fees charged by Stavros to the operating account of 710 Flatbush Holdings LLC. Mr. Caldwell objected to these fees as unauthorized under the operating agreement of 710 Flatbush Holdings LLC. Documents in this category include emails between Caldwell and Stavros, internal financial analyses prepared by Caldwell, and excerpts from the 710 Flatbush Holdings LLC operating agreement. Documents in this category have been produced to the extent they were not withheld on privilege grounds. A significant number of communications concerning this dispute involved Mr. Caldwell's outside counsel at Whitmore & Kessler LLP, specifically Patricia Sheldon, Partner, Commercial Real Estate, and those communications have been withheld and logged on the privilege log as described in Section 5 below.

e. Miscellaneous Documents Identified During Final Quality-Control Sweeps. A small number of additional responsive documents were identified during the final quality-control review sweeps conducted by the review team in the week of February 13–17, 2023. These documents were not captured in the initial two productions due to minor coding inconsistencies or review queue allocation issues that were identified and corrected during the QC process. The documents in this category are varied in nature and do not fall neatly into a single substantive category; they include, among other items, a small number of calendar entries, text-message screenshots, and miscellaneous financial records.

2.3 Delivery Method

Production 3 was delivered to Assistant United States Attorney Miriam T. Goldfarb at the United States Attorney's Office, Southern District of New York, located at 500 Pearl Street, New York, New York 10007. Delivery was made via secure electronic file transfer facilitated by Clearpath Document Solutions Inc., the e-discovery vendor retained for this matter. The project manager overseeing the transfer was Raj K. Anand of Clearpath, located at 15 Maiden Lane, Suite 800, New York, New York 10038. The secure file transfer was initiated on the morning of February 24, 2023, and delivery was confirmed complete on the same date. Clearpath has provided written confirmation that the file transfer was successful and that all files were received without error.

In addition to the electronic production, a transmittal letter from Conrad Ashby addressed to AUSA Goldfarb was sent separately on this date. The transmittal letter identifies the Bates range of the production, the total document count, the accompanying privilege log, and the representation that this production completes the document production obligations under the subpoena. A copy of the transmittal letter has been filed in the matter file.

2.4 Privilege Log

Concurrent with Production 3, a privilege log listing all documents withheld on grounds of attorney-client privilege and/or the work product doctrine was delivered to AUSA Goldfarb via the same secure electronic file transfer channel. The privilege log contains a total of 214 entries. This is a cumulative privilege log encompassing all documents withheld across the entirety of the document review, not merely those documents reviewed in connection with Production 3. The privilege log is discussed in greater detail in Section 5 below.

3. Prior Productions — Summary

The following is a summary of the two prior rolling productions made in this matter.

3.1 Production 1 (January 20, 2023)

• Bates Range: CALDWELL-00001 through CALDWELL-01842

• Document Count: 1,842 documents

• Delivery Date: January 20, 2023

Production 1 was delivered on the negotiated extended return date of January 20, 2023. The original return date specified in the subpoena was December 9, 2022. On December 1, 2022, Conrad Ashby contacted AUSA Goldfarb by telephone to request an extension of the return date to allow sufficient time for the collection, processing, review, and production of documents. AUSA Goldfarb agreed to the extension in an email dated December 8, 2022, granting an initial extended return date of January 20, 2023, with the understanding that the production would be made on a rolling basis if the full universe of responsive documents could not be reviewed by that date. Production 1 was delivered on January 20, 2023, in compliance with the negotiated deadline.

Production 1 consisted primarily of the most readily identifiable responsive documents, including core email communications between Caldwell and Stavros, fund subscription agreements, limited partnership agreements, operating agreements for the joint venture entities, and bank statements reflecting wire transfers to and from the Stavros-affiliated entities.

3.2 Production 2 (February 10, 2023)

• Bates Range: CALDWELL-01843 through CALDWELL-03217

• Document Count: 1,375 documents

• Delivery Date: February 10, 2023

Production 2 was delivered on February 10, 2023, pursuant to a second extension granted by AUSA Goldfarb on January 19, 2023, one day prior to the first production deadline. In her January 19, 2023 email, AUSA Goldfarb confirmed that the Government would accept the remaining documents on a rolling basis through February 28, 2023, provided that substantial progress was demonstrated with each tranche. Production 2 included a broader set of responsive materials, including additional email correspondence, financial analyses, investor reports, and scanned paper records that had been collected from Mr. Caldwell's physical files at his residence and office and processed by Clearpath during late January 2023.

4. Cumulative Production Statistics

4.1 Collection Summary

The document collection in this matter was conducted across the following custodial sources:

Custodian: Jonathan R. Caldwell

Electronic Sources:

• Personal and business email account: jrc@caldwellcap.com (hosted on a commercial email platform; full mailbox export covering the collection date range)

• Personal mobile device: Ashbury Corporation (text messages and attachments extracted via forensic imaging performed by Clearpath)

• Caldwell Capital Advisors LLC shared drive: network storage drive containing fund-related correspondence, financial records, and deal files maintained in the ordinary course of Mr. Caldwell's investment advisory business

Physical Sources:

• Physical files at residence: 1140 Park Avenue, Apt. 14C, New York, New York 10128 (two banker's boxes of paper files relating to real estate investments and personal financial records)

• Physical files at office: 590 Madison Avenue, 22nd Floor, New York, New York 10022 (three banker's boxes of paper files relating to Caldwell Capital Advisors LLC business operations, including fund investments and joint venture records)

Collection Date Range: January 1, 2014, through December 31, 2021. This date range was agreed upon with AUSA Goldfarb during the December 12, 2022 proffer call as the appropriate temporal scope for the document production, reflecting the period during which Mr. Caldwell's investments in and dealings with the Stavros-affiliated entities were active.

Total Documents Collected: Approximately 14,200 documents, comprising emails, email attachments, standalone PDF files, Microsoft Office documents, scanned paper files, text messages, and other miscellaneous file types.

Total Data Volume Processed: Approximately 8.3 GB, as processed by Clearpath Document Solutions Inc.

4.2 Review Summary

The document review was conducted by a team consisting of Lisa Morrow (lead reviewer), Daniel Obi, and two contract review attorneys engaged through Clearpath's staffing division. All reviewers were trained on the subpoena's document requests and the Privilege Review Guidelines Memorandum issued by Conrad Ashby on December 14, 2022. The review was conducted using a Relativity-hosted database maintained by Clearpath.

The results of the review are summarized as follows:

• Total documents reviewed for responsiveness and privilege: 14,200

• Total documents identified as responsive to the subpoena: 3,847

• Total documents withheld on privilege grounds (attorney-client privilege and/or work product doctrine): 214

• Total documents produced to the Government: 3,633 (calculated as 3,847 responsive documents minus 214 documents withheld on privilege grounds)

• Total documents determined to be non-responsive: Approximately 10,353 (14,200 total collected minus 3,847 responsive)

4.3 Production Breakdown by Tranche

The following table summarizes the three rolling production tranches:

4.4 Reconciliation. The following reconciliation confirms the accuracy and completeness of the production:

1. Production Count Verification: 1,842 (Production 1) + 1,375 (Production 2) + 416 (Production 3) = 3,633 total documents produced. This figure is confirmed to be accurate and matches the final Bates number in the production set (CALDWELL-03633).

2. Responsive Document Verification: 3,633 documents produced + 214 documents withheld on privilege grounds = 3,847 total responsive documents. This figure is consistent with the total number of documents tagged as responsive in the Relativity review database.

3. Collection Universe Verification: All approximately 14,200 documents collected from the custodial sources identified above were reviewed for responsiveness and privilege. The approximately 10,353 documents determined to be non-responsive (14,200 total collected minus 3,847 responsive) were not produced. Non-responsive documents included personal correspondence unrelated to the Stavros entities, marketing materials, spam emails, duplicate documents that were de-duplicated during processing, and other materials falling outside the scope of the subpoena's document requests.

4. Bates Continuity Verification: The Bates numbering sequence runs continuously from CALDWELL-00001 through CALDWELL-03633, with no gaps or duplications. This has been confirmed through Clearpath's production log and internal QC checks.

5. Privilege Log Summary

5.1 Overview. A cumulative privilege log was delivered to AUSA Goldfarb concurrently with Production 3 on February 24, 2023. The privilege log contains a total of 214 entries, each corresponding to a document withheld from production on the grounds of attorney-client privilege and/or the work product doctrine.

5.2 Format. The privilege log was prepared in tabular format, with the following columns for each entry:

• Entry Number

• Bates Number (assigned to the withheld document for internal tracking purposes, using the prefix "PRIV-CALDWELL")

• Date of Document

• Author / Sender

• Recipient(s)

• CC / Additional Recipients

• Subject Line / Description of Document

• Privilege(s) Asserted

5.3 Categories of Privileged Documents

The 214 withheld documents fall into the following principal categories:

a. Communications with Whitmore & Kessler LLP Regarding the Separation Agreement with Stavros. The largest category of privileged documents consists of communications between Jonathan R. Caldwell and his outside counsel at Whitmore & Kessler LLP, specifically Patricia Sheldon, Partner, Commercial Real Estate. These communications relate to the negotiation and execution of the December 15, 2019 separation agreement between Mr. Caldwell and Marcus W. Stavros, pursuant to which Stavros purchased Mr. Caldwell's 50% membership interest in 710 Flatbush Holdings LLC for approximately $3.4 million and Mr. Caldwell's 40% membership interest in Stavros-Caldwell Industrial LLC for approximately $1.85 million. The communications include emails, letter correspondence, draft agreements, redline markups, and internal memoranda prepared by Whitmore & Kessler at Mr. Caldwell's direction. These documents have been withheld as protected by the attorney-client privilege, as they reflect confidential communications between Mr. Caldwell and his attorney made for the purpose of seeking and rendering legal advice in connection with the separation transaction.

b. Communications with Thornberg & Whitfield CPAs — Dual-Purpose Communications. A smaller but significant category of privileged documents consists of communications between Jonathan R. Caldwell and Helen R. Thornberg, Senior Partner at Thornberg & Whitfield CPAs, located at 521 Fifth Avenue, 17th Floor, New York, New York 10175. These communications were withheld on the basis that they constitute dual-purpose communications in which tax advice was rendered at the direction of counsel (i.e., Patricia Sheldon at Whitmore & Kessler LLP), and where the predominant purpose of the communications was to facilitate the rendering of legal advice. These documents include tax analyses of the buyout transaction structure, advice regarding the characterization of the distribution payments for federal and state income tax purposes, and related correspondence in which Ms. Thornberg was acting in her capacity as a tax advisor at the direction of Mr. Caldwell's legal counsel. Consistent with the standards articulated in In re Kellogg Brown & Root, Inc., 756 F.3d 754 (D.C. Cir. 2014), and the Second Circuit's guidance on dual-purpose communications, the privilege has been asserted where legal advice was the predominant purpose of the communication.

c. Internal Calderwood & Harkness LLP Attorney Work Product. A limited number of documents created by attorneys at Calderwood & Harkness LLP fell within the collection date range, to the extent that any internal firm memoranda, research notes, or case assessments were stored on systems accessible to the review team. Because the firm's engagement in this matter postdates the vast majority of the collected materials (the engagement commenced in late November 2022, while the collection date range ends on December 31, 2021), this category is small. To the extent any such documents were identified, they have been withheld as attorney work product under Federal Rule of Civil Procedure 26(b)(3) and its analogous protections in the grand jury context.

5.4 Compliance with Privilege Review Guidelines

The privilege log was prepared in accordance with the Privilege Review Guidelines Memorandum issued by Conrad Ashby on December 14, 2022. That memorandum established the protocols for identifying, coding, and logging privileged documents, including the standard for asserting privilege over dual-purpose communications involving tax advisors. All privilege determinations were reviewed by Daniel Obi and approved by Conrad Ashby prior to the finalization of the privilege log.

6. E-discovery Vendor Confirmation

All processing, hosting, and production services for this matter were performed by Clearpath Document Solutions Inc., located at 15 Maiden Lane, Suite 800, New York, New York 10038. The designated project manager for the engagement was Raj K. Anand.

The key details of the vendor engagement are as follows:

• Total Data Processed: Approximately 8.3 GB. This volume falls within the 10 GB flat-fee threshold established under the vendor engagement letter and statement of work ("SOW") executed between Calderwood & Harkness LLP and Clearpath, dated December 9, 2022. No overage charges have been incurred.

• Vendor Flat Fee: $47,500. This fee covers all processing, hosting, TIFF conversion, OCR, Bates-stamping, load file generation, secure electronic file transfer, and project management services for the duration of the matter. The fee was invoiced and paid in two installments: $23,750 upon execution of the SOW and $23,750 upon delivery of the final production.

• Hosting Continuity: Clearpath has confirmed in writing that the Relativity review database and all associated production files will remain hosted and accessible for the duration of the matter, whether active or dormant, at no additional charge beyond the flat fee, subject to the terms of the SOW. Hosting will continue until such time as Calderwood & Harkness LLP provides written instructions to decommission the database. This arrangement ensures that the engagement team will have continued access to the review database in the event the Government raises questions about the production or requests additional information.

• Delivery Confirmation: Clearpath has provided written confirmation (via email from Raj K. Anand to Lisa Morrow, dated February 24, 2023, at 11:42 a.m. EST) that all three production tranches were successfully transmitted to the Government via Clearpath's secure file transfer platform and that no transmission errors were encountered.

7. Production Issues and Notes

No material issues were encountered during the processing, review, or production of the third and final tranche. The following observations are noted for the record:

• Quality-Control Checks. Comprehensive quality-control checks were performed on the TIFF conversions and load files comprising Production 3. These checks included verification of Bates-stamp accuracy and sequential continuity, confirmation that all TIFF images are legible and correctly correspond to the associated metadata and extracted text, and validation of the load file formatting for Ashgrove Technologies and Sterling Reach Software. No errors were identified during the QC process.

• Bates-Stamping Convention. The Bates-stamping convention (CALDWELL-NNNNN, using a five-digit zero-padded number) was applied consistently across all three productions. The numbering sequence runs continuously from CALDWELL-00001 through CALDWELL-03633 with no gaps, duplications, or re-numbering.

• Redactions. No documents required redaction in any of the three production tranches. Mr. Caldwell is not a target or subject of the grand jury investigation, and no third-party privacy redactions were requested by the Government. Accordingly, all responsive, non-privileged documents were produced in unredacted form.

• Native File Productions. A limited number of documents (principally Microsoft Excel spreadsheets containing embedded formulas) were produced in native format in addition to the TIFF images, consistent with the production specifications agreed upon with AUSA Goldfarb. These native productions are noted in the load files and are cross-referenced to their corresponding TIFF images by Bates number.

• Late-Identified Documents. As noted in Section 2.2(e) above, a small number of responsive documents were identified during the final QC sweeps that had not been captured in Productions 1 or 2. These documents were the result of minor review queue allocation issues that were identified and corrected. The engagement team is satisfied that the final QC process was thorough and that the production is now complete.

8. Outstanding Matters and Recommendations

8.1 Completion of Document Production Obligations

With the delivery of Production 3 and the accompanying privilege log on February 24, 2023, the document production obligations under the grand jury subpoena, Grand Jury No. 22-GJ-4481, are fulfilled. All responsive, non-privileged documents within the agreed-upon collection scope have been produced to the Government, and a comprehensive privilege log has been provided for all withheld documents.

8.2 Testimonial Component of the Subpoena

The subpoena duces tecum served on Mr. Caldwell also contained a testimonial component requiring Mr. Caldwell's appearance before the grand jury. Per the December 12, 2022 proffer call between Conrad Ashby, Lisa Morrow, and AUSA Goldfarb, the Government agreed to defer the scheduling of Mr. Caldwell's testimony pending the Government's review of the document production. No testimony date has been scheduled as of the date of this memorandum, and no further communications have been received from AUSA Goldfarb regarding the timing of testimony. It is anticipated that the Government will review the completed document production before determining whether to call Mr. Caldwell as a witness. The engagement team should remain prepared to address the testimonial component on an expedited basis if and when the Government schedules a date.

8.3 Recommendations. The following recommendations are made for the engagement team's consideration:

1. Acknowledgment of Receipt. The engagement team should await formal acknowledgment of receipt of Production 3 and the privilege log from AUSA Goldfarb before formally concluding the production phase of the engagement. If acknowledgment is not received within five business days (i.e., by March 3, 2023), a follow-up inquiry should be directed to AUSA Goldfarb.

2. Transition to Monitoring/Dormant Status. Once the Government confirms receipt and indicates that no further document requests are forthcoming, the matter should be transitioned to monitoring/dormant status within the firm's matter management system. During the dormant period, periodic status checks should be conducted at 90-day intervals to determine whether the Government has made any further requests, scheduled testimony, or taken other actions relevant to the matter.

3. Retention of Production Records. All production records, Bates logs, privilege logs, vendor correspondence, load files, transmittal letters, and related materials should be retained in the matter file (1034-00001) in perpetuity or in accordance with the firm's document retention policy, whichever is longer. The Relativity review database should remain hosted by Clearpath until a determination is made that it is no longer needed.

4. Client Communication. Mr. Caldwell should be informed that the document production is complete and that the engagement team is awaiting further communication from the Government regarding the testimonial component. This communication should be made by Conrad Ashby or Daniel Obi in accordance with the established client communication protocols for this matter.

5. Billing and Cost Summary. A final billing summary for the document production phase of the engagement should be prepared and circulated to Conrad Ashby for review. The summary should include all attorney time, vendor costs (including the $47,500 Clearpath flat fee), and any other disbursements incurred in connection with the document collection, review, and production.

9. Distribution

This memorandum is for internal distribution only within Calderwood & Harkness LLP. Distribution is limited to the following individuals:

• Conrad Ashby, Billing Partner (White Collar & Investigations)

• Bernard Crawford, Responsible Partner (Labor & Employment)

• Daniel Obi, Lead Associate (Banking & Finance)

A copy of this memorandum has been retained in the matter file, 1034-00001.

This memorandum is not to be distributed outside of Calderwood & Harkness LLP. It is protected by the attorney-client privilege and the work product doctrine and is intended solely for use by the attorneys identified above in connection with their representation of Jonathan R. Caldwell in the above-referenced matter.

Lisa Morrow Associate, Banking & Finance Calderwood & Harkness LLP 450 Park Avenue, 30th Floor New York, New York 10022 Tel: (212) 555-0147 lmorrow@calderwoodharkness.com

PRIVILEGED AND CONFIDENTIAL — ATTORNEY WORK PRODUCT This document is protected by the attorney-client privilege and the work product doctrine. It is intended solely for internal use by the attorneys of Calderwood & Harkness LLP identified herein. Any unauthorized review, use, disclosure, or distribution is prohibited.

Production	Delivery Date	Bates Range	Document Count
Production 1	January 20, 2023	CALDWELL-00001 – CALDWELL-01842	1,842
Production 2	February 10, 2023	CALDWELL-01843 – CALDWELL-03217	1,375
Production 3	February 24, 2023	CALDWELL-03218 – CALDWELL-03633	416
Total	CALDWELL-00001 – CALDWELL-03633	3,633

PRIVILEGED AND CONFIDENTIAL — ATTORNEY WORK PRODUCT
CALDERWOOD & HARKNESS LLP 450 Park Avenue, 30th Floor New York, New York 10022
INTERNAL MEMORANDUM
Matter Number: 1034-00001
To: Conrad Ashby, Partner (White Collar & Investigations) Daniel Obi, Lead Associate (Banking & Finance) Bernard Crawford, Partner (Labor & Employment)
From: Lisa Morrow, Associate (Banking & Finance)
Date: February 24, 2023
Re: Third and Final Rolling Production — Grand Jury Subpoena Response, Grand Jury No. 22-GJ-4481 (U.S. District Court, Southern District of New York) — Jonathan R. Caldwell
1. Purpose
This memorandum documents the contents, Bates range, and delivery details of the third and final rolling production made on behalf of our client, Jonathan R. Caldwell, in response to the federal grand jury subpoena issued on November 18, 2022, by the United States Attorney's Office for the Southern District of New York (the "USAO" or "Government"), Grand Jury No. 22-GJ-4481. The subpoena was served on Mr. Caldwell on November 21, 2022, at his residence located at 1140 Park Avenue, Apt. 14C, New York, New York 10128. The subpoena called for the production of documents relating to, among other things, Mr. Caldwell's investments in and financial dealings with Marcus W. Stavros and various entities controlled by or affiliated with Stavros, including Aegean Realty Partners LLC and its affiliated fund vehicles, as well as certain joint venture entities in which Mr. Caldwell held ownership interests.
This production — designated herein as "Production 3" — completes all document production obligations under the subpoena, as those obligations were negotiated with, and as the scope of the production was defined in consultation with, Assistant United States Attorney Miriam T. Goldfarb of the Complex Frauds & Cybercrime Unit, USAO, S.D.N.Y. No further document productions are anticipated absent a supplemental request or additional subpoena from the Government.
The purpose of this memorandum is to provide the engagement team with a comprehensive record of Production 3, a cumulative summary of all three production tranches, an overview of the privilege log delivered concurrently with this final production, and recommendations regarding the next steps for the matter. This memorandum is intended solely for internal use and is protected by the attorney-client privilege and the work product doctrine.
2. Production 3 — Details
2.1 Bates Range and Document Count
The third and final production encompasses documents bearing the following Bates designation:
•  Bates Range: CALDWELL-03218 through CALDWELL-03633
•  Total Document Count (Production 3): 416 documents
All documents in Production 3 were produced in TIFF image format with corresponding load files (including extracted text, metadata fields, and Bates endorsements), consistent with the format used in Productions 1 and 2 and in accordance with the production specifications agreed upon with AUSA Goldfarb at the outset of the engagement. The load files include standard Ashgrove Technologies and Relativity-compatible .DAT and .OPT files, together with native files where applicable (principally for spreadsheets and other documents where native format was necessary to preserve embedded formulas or functionality). The TIFF images were produced at 300 DPI with full-text OCR overlays.
2.2 Categories of Documents Included in Production 3
Production 3 encompasses the following categories of documents, each of which falls within the scope of the subpoena's document requests:
a. Remaining Emails and Attachments — Aegean Realty Fund V LP. This category comprises the remaining email communications and associated attachments between Jonathan R. Caldwell (using his personal and business email address, jrc@caldwellcap.com) and Marcus W. Stavros or other personnel of Aegean Realty Partners LLC relating to Aegean Realty Fund V LP. These communications principally concern Mr. Caldwell's September 2018 investment of approximately $3.5 million in Aegean Realty Fund V LP, as well as subsequent fund communications, including quarterly investor updates, capital call notices, distribution notices, and general correspondence between Mr. Caldwell and fund management. A number of these emails were located in archived mailbox folders that were not fully captured during the initial email collection but were subsequently identified and collected during a supplemental sweep conducted in early February 2023.
b. Scanned Paper Correspondence and Financial Statements — Joint Venture Entities. This category includes paper correspondence and financial statements from Mr. Caldwell's physical files maintained at his residence at 1140 Park Avenue, Apt. 14C, New York, New York 10128, and at his office at 590 Madison Avenue, 22nd Floor, New York, New York 10022. These documents relate to the two joint venture entities in which Mr. Caldwell held ownership interests alongside Marcus W. Stavros: (i) 710 Flatbush Holdings LLC, a Delaware limited liability company formed in 2016 for the acquisition and management of a commercial property located at 710 Flatbush Avenue, Brooklyn, New York; and (ii) Stavros-Caldwell Industrial LLC, a Delaware limited liability company formed in 2017 for the acquisition and management of industrial warehouse properties in the greater Newark, New Jersey area. The paper documents were scanned and processed by Clearpath Document Solutions Inc. and coded in the review platform in the same manner as the electronic documents.
c. Distribution Notices and Wire Transfer Confirmations. This category encompasses distribution notices and wire transfer confirmations relating to cash distributions received by Mr. Caldwell from Aegean Realty Fund III LP, Aegean Realty Fund IV LP, Aegean Realty Fund V LP, 710 Flatbush Holdings LLC, and Stavros-Caldwell Industrial LLC. These documents were sourced from both Mr. Caldwell's email account and his physical banking and financial records. They provide a substantially complete record of the cash flows from the Stavros-affiliated entities to Mr. Caldwell during the collection period.
d. Documents Relating to the October 2019 Management Fee Dispute. This category includes documents relating to the dispute that arose in approximately October 2019 over approximately $340,000 in management fees charged by Stavros to the operating account of 710 Flatbush Holdings LLC. Mr. Caldwell objected to these fees as unauthorized under the operating agreement of 710 Flatbush Holdings LLC. Documents in this category include emails between Caldwell and Stavros, internal financial analyses prepared by Caldwell, and excerpts from the 710 Flatbush Holdings LLC operating agreement. Documents in this category have been produced to the extent they were not withheld on privilege grounds. A significant number of communications concerning this dispute involved Mr. Caldwell's outside counsel at Whitmore & Kessler LLP, specifically Patricia Sheldon, Partner, Commercial Real Estate, and those communications have been withheld and logged on the privilege log as described in Section 5 below.
e. Miscellaneous Documents Identified During Final Quality-Control Sweeps. A small number of additional responsive documents were identified during the final quality-control review sweeps conducted by the review team in the week of February 13–17, 2023. These documents were not captured in the initial two productions due to minor coding inconsistencies or review queue allocation issues that were identified and corrected during the QC process. The documents in this category are varied in nature and do not fall neatly into a single substantive category; they include, among other items, a small number of calendar entries, text-message screenshots, and miscellaneous financial records.
2.3 Delivery Method
Production 3 was delivered to Assistant United States Attorney Miriam T. Goldfarb at the United States Attorney's Office, Southern District of New York, located at 500 Pearl Street, New York, New York 10007. Delivery was made via secure electronic file transfer facilitated by Clearpath Document Solutions Inc., the e-discovery vendor retained for this matter. The project manager overseeing the transfer was Raj K. Anand of Clearpath, located at 15 Maiden Lane, Suite 800, New York, New York 10038. The secure file transfer was initiated on the morning of February 24, 2023, and delivery was confirmed complete on the same date. Clearpath has provided written confirmation that the file transfer was successful and that all files were received without error.
In addition to the electronic production, a transmittal letter from Conrad Ashby addressed to AUSA Goldfarb was sent separately on this date. The transmittal letter identifies the Bates range of the production, the total document count, the accompanying privilege log, and the representation that this production completes the document production obligations under the subpoena. A copy of the transmittal letter has been filed in the matter file.
2.4 Privilege Log
Concurrent with Production 3, a privilege log listing all documents withheld on grounds of attorney-client privilege and/or the work product doctrine was delivered to AUSA Goldfarb via the same secure electronic file transfer channel. The privilege log contains a total of 214 entries. This is a cumulative privilege log encompassing all documents withheld across the entirety of the document review, not merely those documents reviewed in connection with Production 3. The privilege log is discussed in greater detail in Section 5 below.
3. Prior Productions — Summary
The following is a summary of the two prior rolling productions made in this matter.
3.1 Production 1 (January 20, 2023)
•  Bates Range: CALDWELL-00001 through CALDWELL-01842
•  Document Count: 1,842 documents
•  Delivery Date: January 20, 2023
Production 1 was delivered on the negotiated extended return date of January 20, 2023. The original return date specified in the subpoena was December 9, 2022. On December 1, 2022, Conrad Ashby contacted AUSA Goldfarb by telephone to request an extension of the return date to allow sufficient time for the collection, processing, review, and production of documents. AUSA Goldfarb agreed to the extension in an email dated December 8, 2022, granting an initial extended return date of January 20, 2023, with the understanding that the production would be made on a rolling basis if the full universe of responsive documents could not be reviewed by that date. Production 1 was delivered on January 20, 2023, in compliance with the negotiated deadline.
Production 1 consisted primarily of the most readily identifiable responsive documents, including core email communications between Caldwell and Stavros, fund subscription agreements, limited partnership agreements, operating agreements for the joint venture entities, and bank statements reflecting wire transfers to and from the Stavros-affiliated entities.
3.2 Production 2 (February 10, 2023)
•  Bates Range: CALDWELL-01843 through CALDWELL-03217
•  Document Count: 1,375 documents
•  Delivery Date: February 10, 2023
Production 2 was delivered on February 10, 2023, pursuant to a second extension granted by AUSA Goldfarb on January 19, 2023, one day prior to the first production deadline. In her January 19, 2023 email, AUSA Goldfarb confirmed that the Government would accept the remaining documents on a rolling basis through February 28, 2023, provided that substantial progress was demonstrated with each tranche. Production 2 included a broader set of responsive materials, including additional email correspondence, financial analyses, investor reports, and scanned paper records that had been collected from Mr. Caldwell's physical files at his residence and office and processed by Clearpath during late January 2023.
4. Cumulative Production Statistics
4.1 Collection Summary
The document collection in this matter was conducted across the following custodial sources:
Custodian: Jonathan R. Caldwell
Electronic Sources:
•  Personal and business email account: jrc@caldwellcap.com (hosted on a commercial email platform; full mailbox export covering the collection date range)
•  Personal mobile device: Ashbury Corporation (text messages and attachments extracted via forensic imaging performed by Clearpath)
•  Caldwell Capital Advisors LLC shared drive: network storage drive containing fund-related correspondence, financial records, and deal files maintained in the ordinary course of Mr. Caldwell's investment advisory business
Physical Sources:
•  Physical files at residence: 1140 Park Avenue, Apt. 14C, New York, New York 10128 (two banker's boxes of paper files relating to real estate investments and personal financial records)
•  Physical files at office: 590 Madison Avenue, 22nd Floor, New York, New York 10022 (three banker's boxes of paper files relating to Caldwell Capital Advisors LLC business operations, including fund investments and joint venture records)
Collection Date Range: January 1, 2014, through December 31, 2021. This date range was agreed upon with AUSA Goldfarb during the December 12, 2022 proffer call as the appropriate temporal scope for the document production, reflecting the period during which Mr. Caldwell's investments in and dealings with the Stavros-affiliated entities were active.
Total Documents Collected: Approximately 14,200 documents, comprising emails, email attachments, standalone PDF files, Microsoft Office documents, scanned paper files, text messages, and other miscellaneous file types.
Total Data Volume Processed: Approximately 8.3 GB, as processed by Clearpath Document Solutions Inc.
4.2 Review Summary
The document review was conducted by a team consisting of Lisa Morrow (lead reviewer), Daniel Obi, and two contract review attorneys engaged through Clearpath's staffing division. All reviewers were trained on the subpoena's document requests and the Privilege Review Guidelines Memorandum issued by Conrad Ashby on December 14, 2022. The review was conducted using a Relativity-hosted database maintained by Clearpath.
The results of the review are summarized as follows:
•  Total documents reviewed for responsiveness and privilege: 14,200
•  Total documents identified as responsive to the subpoena: 3,847
•  Total documents withheld on privilege grounds (attorney-client privilege and/or work product doctrine): 214
•  Total documents produced to the Government: 3,633 (calculated as 3,847 responsive documents minus 214 documents withheld on privilege grounds)
•  Total documents determined to be non-responsive: Approximately 10,353 (14,200 total collected minus 3,847 responsive)
4.3 Production Breakdown by Tranche
The following table summarizes the three rolling production tranches:
4.4 Reconciliation.  The following reconciliation confirms the accuracy and completeness of the production:
1.  Production Count Verification: 1,842 (Production 1) + 1,375 (Production 2) + 416 (Production 3) = 3,633 total documents produced. This figure is confirmed to be accurate and matches the final Bates number in the production set (CALDWELL-03633).
2.  Responsive Document Verification: 3,633 documents produced + 214 documents withheld on privilege grounds = 3,847 total responsive documents. This figure is consistent with the total number of documents tagged as responsive in the Relativity review database.
3.  Collection Universe Verification: All approximately 14,200 documents collected from the custodial sources identified above were reviewed for responsiveness and privilege. The approximately 10,353 documents determined to be non-responsive (14,200 total collected minus 3,847 responsive) were not produced. Non-responsive documents included personal correspondence unrelated to the Stavros entities, marketing materials, spam emails, duplicate documents that were de-duplicated during processing, and other materials falling outside the scope of the subpoena's document requests.
4.  Bates Continuity Verification: The Bates numbering sequence runs continuously from CALDWELL-00001 through CALDWELL-03633, with no gaps or duplications. This has been confirmed through Clearpath's production log and internal QC checks.
5. Privilege Log Summary
5.1 Overview.  A cumulative privilege log was delivered to AUSA Goldfarb concurrently with Production 3 on February 24, 2023. The privilege log contains a total of 214 entries, each corresponding to a document withheld from production on the grounds of attorney-client privilege and/or the work product doctrine.
5.2 Format.  The privilege log was prepared in tabular format, with the following columns for each entry:
•  Entry Number
•  Bates Number (assigned to the withheld document for internal tracking purposes, using the prefix "PRIV-CALDWELL")
•  Date of Document
•  Author / Sender
•  Recipient(s)
•  CC / Additional Recipients
•  Subject Line / Description of Document
•  Privilege(s) Asserted
5.3 Categories of Privileged Documents
The 214 withheld documents fall into the following principal categories:
a. Communications with Whitmore & Kessler LLP Regarding the Separation Agreement with Stavros. The largest category of privileged documents consists of communications between Jonathan R. Caldwell and his outside counsel at Whitmore & Kessler LLP, specifically Patricia Sheldon, Partner, Commercial Real Estate. These communications relate to the negotiation and execution of the December 15, 2019 separation agreement between Mr. Caldwell and Marcus W. Stavros, pursuant to which Stavros purchased Mr. Caldwell's 50% membership interest in 710 Flatbush Holdings LLC for approximately $3.4 million and Mr. Caldwell's 40% membership interest in Stavros-Caldwell Industrial LLC for approximately $1.85 million. The communications include emails, letter correspondence, draft agreements, redline markups, and internal memoranda prepared by Whitmore & Kessler at Mr. Caldwell's direction. These documents have been withheld as protected by the attorney-client privilege, as they reflect confidential communications between Mr. Caldwell and his attorney made for the purpose of seeking and rendering legal advice in connection with the separation transaction.
b. Communications with Thornberg & Whitfield CPAs — Dual-Purpose Communications. A smaller but significant category of privileged documents consists of communications between Jonathan R. Caldwell and Helen R. Thornberg, Senior Partner at Thornberg & Whitfield CPAs, located at 521 Fifth Avenue, 17th Floor, New York, New York 10175. These communications were withheld on the basis that they constitute dual-purpose communications in which tax advice was rendered at the direction of counsel (i.e., Patricia Sheldon at Whitmore & Kessler LLP), and where the predominant purpose of the communications was to facilitate the rendering of legal advice. These documents include tax analyses of the buyout transaction structure, advice regarding the characterization of the distribution payments for federal and state income tax purposes, and related correspondence in which Ms. Thornberg was acting in her capacity as a tax advisor at the direction of Mr. Caldwell's legal counsel. Consistent with the standards articulated in In re Kellogg Brown & Root, Inc., 756 F.3d 754 (D.C. Cir. 2014), and the Second Circuit's guidance on dual-purpose communications, the privilege has been asserted where legal advice was the predominant purpose of the communication.
c. Internal Calderwood & Harkness LLP Attorney Work Product. A limited number of documents created by attorneys at Calderwood & Harkness LLP fell within the collection date range, to the extent that any internal firm memoranda, research notes, or case assessments were stored on systems accessible to the review team. Because the firm's engagement in this matter postdates the vast majority of the collected materials (the engagement commenced in late November 2022, while the collection date range ends on December 31, 2021), this category is small. To the extent any such documents were identified, they have been withheld as attorney work product under Federal Rule of Civil Procedure 26(b)(3) and its analogous protections in the grand jury context.
5.4 Compliance with Privilege Review Guidelines
The privilege log was prepared in accordance with the Privilege Review Guidelines Memorandum issued by Conrad Ashby on December 14, 2022. That memorandum established the protocols for identifying, coding, and logging privileged documents, including the standard for asserting privilege over dual-purpose communications involving tax advisors. All privilege determinations were reviewed by Daniel Obi and approved by Conrad Ashby prior to the finalization of the privilege log.
6. E-discovery Vendor Confirmation
All processing, hosting, and production services for this matter were performed by Clearpath Document Solutions Inc., located at 15 Maiden Lane, Suite 800, New York, New York 10038. The designated project manager for the engagement was Raj K. Anand.
The key details of the vendor engagement are as follows:
•  Total Data Processed: Approximately 8.3 GB. This volume falls within the 10 GB flat-fee threshold established under the vendor engagement letter and statement of work ("SOW") executed between Calderwood & Harkness LLP and Clearpath, dated December 9, 2022. No overage charges have been incurred.
•  Vendor Flat Fee: $47,500. This fee covers all processing, hosting, TIFF conversion, OCR, Bates-stamping, load file generation, secure electronic file transfer, and project management services for the duration of the matter. The fee was invoiced and paid in two installments: $23,750 upon execution of the SOW and $23,750 upon delivery of the final production.
•  Hosting Continuity: Clearpath has confirmed in writing that the Relativity review database and all associated production files will remain hosted and accessible for the duration of the matter, whether active or dormant, at no additional charge beyond the flat fee, subject to the terms of the SOW. Hosting will continue until such time as Calderwood & Harkness LLP provides written instructions to decommission the database. This arrangement ensures that the engagement team will have continued access to the review database in the event the Government raises questions about the production or requests additional information.
•  Delivery Confirmation: Clearpath has provided written confirmation (via email from Raj K. Anand to Lisa Morrow, dated February 24, 2023, at 11:42 a.m. EST) that all three production tranches were successfully transmitted to the Government via Clearpath's secure file transfer platform and that no transmission errors were encountered.
7. Production Issues and Notes
No material issues were encountered during the processing, review, or production of the third and final tranche. The following observations are noted for the record:
•  Quality-Control Checks. Comprehensive quality-control checks were performed on the TIFF conversions and load files comprising Production 3. These checks included verification of Bates-stamp accuracy and sequential continuity, confirmation that all TIFF images are legible and correctly correspond to the associated metadata and extracted text, and validation of the load file formatting for Ashgrove Technologies and Sterling Reach Software. No errors were identified during the QC process.
•  Bates-Stamping Convention. The Bates-stamping convention (CALDWELL-NNNNN, using a five-digit zero-padded number) was applied consistently across all three productions. The numbering sequence runs continuously from CALDWELL-00001 through CALDWELL-03633 with no gaps, duplications, or re-numbering.
•  Redactions. No documents required redaction in any of the three production tranches. Mr. Caldwell is not a target or subject of the grand jury investigation, and no third-party privacy redactions were requested by the Government. Accordingly, all responsive, non-privileged documents were produced in unredacted form.
•  Native File Productions. A limited number of documents (principally Microsoft Excel spreadsheets containing embedded formulas) were produced in native format in addition to the TIFF images, consistent with the production specifications agreed upon with AUSA Goldfarb. These native productions are noted in the load files and are cross-referenced to their corresponding TIFF images by Bates number.
•  Late-Identified Documents. As noted in Section 2.2(e) above, a small number of responsive documents were identified during the final QC sweeps that had not been captured in Productions 1 or 2. These documents were the result of minor review queue allocation issues that were identified and corrected. The engagement team is satisfied that the final QC process was thorough and that the production is now complete.
8. Outstanding Matters and Recommendations
8.1 Completion of Document Production Obligations
With the delivery of Production 3 and the accompanying privilege log on February 24, 2023, the document production obligations under the grand jury subpoena, Grand Jury No. 22-GJ-4481, are fulfilled. All responsive, non-privileged documents within the agreed-upon collection scope have been produced to the Government, and a comprehensive privilege log has been provided for all withheld documents.
8.2 Testimonial Component of the Subpoena
The subpoena duces tecum served on Mr. Caldwell also contained a testimonial component requiring Mr. Caldwell's appearance before the grand jury. Per the December 12, 2022 proffer call between Conrad Ashby, Lisa Morrow, and AUSA Goldfarb, the Government agreed to defer the scheduling of Mr. Caldwell's testimony pending the Government's review of the document production. No testimony date has been scheduled as of the date of this memorandum, and no further communications have been received from AUSA Goldfarb regarding the timing of testimony. It is anticipated that the Government will review the completed document production before determining whether to call Mr. Caldwell as a witness. The engagement team should remain prepared to address the testimonial component on an expedited basis if and when the Government schedules a date.
8.3 Recommendations.  The following recommendations are made for the engagement team's consideration:
1.  Acknowledgment of Receipt. The engagement team should await formal acknowledgment of receipt of Production 3 and the privilege log from AUSA Goldfarb before formally concluding the production phase of the engagement. If acknowledgment is not received within five business days (i.e., by March 3, 2023), a follow-up inquiry should be directed to AUSA Goldfarb.
2.  Transition to Monitoring/Dormant Status. Once the Government confirms receipt and indicates that no further document requests are forthcoming, the matter should be transitioned to monitoring/dormant status within the firm's matter management system. During the dormant period, periodic status checks should be conducted at 90-day intervals to determine whether the Government has made any further requests, scheduled testimony, or taken other actions relevant to the matter.
3.  Retention of Production Records. All production records, Bates logs, privilege logs, vendor correspondence, load files, transmittal letters, and related materials should be retained in the matter file (1034-00001) in perpetuity or in accordance with the firm's document retention policy, whichever is longer. The Relativity review database should remain hosted by Clearpath until a determination is made that it is no longer needed.
4.  Client Communication. Mr. Caldwell should be informed that the document production is complete and that the engagement team is awaiting further communication from the Government regarding the testimonial component. This communication should be made by Conrad Ashby or Daniel Obi in accordance with the established client communication protocols for this matter.
5.  Billing and Cost Summary. A final billing summary for the document production phase of the engagement should be prepared and circulated to Conrad Ashby for review. The summary should include all attorney time, vendor costs (including the $47,500 Clearpath flat fee), and any other disbursements incurred in connection with the document collection, review, and production.
9. Distribution
This memorandum is for internal distribution only within Calderwood & Harkness LLP. Distribution is limited to the following individuals:
•  Conrad Ashby, Billing Partner (White Collar & Investigations)
•  Bernard Crawford, Responsible Partner (Labor & Employment)
•  Daniel Obi, Lead Associate (Banking & Finance)
A copy of this memorandum has been retained in the matter file, 1034-00001.
This memorandum is not to be distributed outside of Calderwood & Harkness LLP. It is protected by the attorney-client privilege and the work product doctrine and is intended solely for use by the attorneys identified above in connection with their representation of Jonathan R. Caldwell in the above-referenced matter.
Lisa Morrow Associate, Banking & Finance Calderwood & Harkness LLP 450 Park Avenue, 30th Floor New York, New York 10022 Tel: (212) 555-0147 lmorrow@calderwoodharkness.com
PRIVILEGED AND CONFIDENTIAL — ATTORNEY WORK PRODUCT This document is protected by the attorney-client privilege and the work product doctrine. It is intended solely for internal use by the attorneys of Calderwood & Harkness LLP identified herein. Any unauthorized review, use, disclosure, or distribution is prohibited.
Production | Delivery Date | Bates Range | Document Count
Production 1 | January 20, 2023 | CALDWELL-00001 – CALDWELL-01842 | 1,842
Production 2 | February 10, 2023 | CALDWELL-01843 – CALDWELL-03217 | 1,375
Production 3 | February 24, 2023 | CALDWELL-03218 – CALDWELL-03633 | 416
Total | CALDWELL-00001 – CALDWELL-03633 | 3,633

PRIVILEGED AND CONFIDENTIAL — ATTORNEY WORK PRODUCT

INTERNAL MEMORANDUM

Record

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