CALDERWOOD & HARKNESS LLP Attorneys at Law
450 Park Avenue, 30th Floor New York, New York 10022
Telephone: (212) 554-7100 Facsimile: (212) 554-7101 General Email: info@calderwoodharkness.com
Conrad Ashby Partner, White Collar & Investigations Direct Dial: (212) 554-7138 Direct Fax: (212) 554-7139
Email: cashby@calderwoodharkness.com
December 7, 2022
VIA EMAIL AND FIRST-CLASS MAIL
Miriam T. Goldfarb, Esq. Assistant United States Attorney Complex Frauds & Cybercrime Unit United States Attorney's Office Southern District of New York 500 Pearl Street New York, New York 10007
Re: Grand Jury Subpoena No. 22-GJ-4481 — Jonathan R. Caldwell Return Date: December 9, 2022
Dear Ms. Goldfarb:
This firm represents Jonathan R. Caldwell in connection with a federal grand jury subpoena issued on November 18, 2022, bearing Grand Jury No. 22-GJ-4481, which was served upon Mr. Caldwell on November 21, 2022, at his residence located at 1140 Park Avenue, Apartment 14C, New York, New York 10128. We write to respectfully request an extension of the subpoena's current return date from December 9, 2022 to January 20, 2023, and to propose a rolling production schedule that we believe will serve the interests of both the government and Mr. Caldwell in ensuring a thorough, orderly, and legally compliant response to the subpoena's demands.
Scope of the Subpoena and Volume of Responsive Materials
As you are aware, the subpoena encompasses an exceptionally broad range of document demands. Among other things, it calls for the production of all documents and communications between Mr. Caldwell and Marcus W. Stavros; all documents and communications between Mr. Caldwell and any Aegean Realty Partners LLC entity, including but not limited to Aegean Realty Fund III LP, Aegean Realty Fund IV LP, and Aegean Realty Fund V LP; and all documents and communications between Mr. Caldwell and Westlake Fidelity Bank, N.A. or Harborview Trust Company. The subpoena's date range spans from January 1, 2014 through December 31, 2021 — a period of approximately eight years. The categories of responsive documents encompassed by these demands are similarly expansive and include, among other things, materials relating to real estate investments and syndications, loan and financing arrangements, capital raises and capital calls, appraisals and valuations, property inspection reports, due diligence materials, and transfers or movements of funds. We note as well that the subpoena commands testimony, which we address separately below.
Since receiving the subpoena, Calderwood & Harkness has undertaken a preliminary assessment of Mr. Caldwell's personal and business records in order to evaluate the scope and volume of potentially responsive materials. This assessment has encompassed Mr. Caldwell's email accounts, mobile device data, and physical files maintained at both his residence and his office at Caldwell Capital Advisors LLC, located at 590 Madison Avenue, Suite 2310, New York, New York 10022. Based on this preliminary review, we have identified a potentially responsive document universe of substantial volume, currently estimated at approximately 14,200 documents comprising approximately 8.3 gigabytes of electronically stored information. This volume is significant and requires the engagement of a professional e-discovery vendor for forensic collection, processing, hosting, and production, as well as a thorough document-by-document review for responsiveness and for applicable privileges before any production can responsibly be made to the government.
Basis for the Extension Request
The current return date of December 9, 2022 — only eighteen days from the date the subpoena was served upon Mr. Caldwell, and just two days from the date of this letter — is insufficient to complete a responsible and thorough review and production of the volume of materials described above. In order to produce documents in a manner that is both complete and legally compliant, a number of discrete and time-intensive steps must be undertaken before any production is made. Specifically, the following steps are required:
(1) Forensic collection of electronically stored information from multiple custodians and data sources, including Mr. Caldwell's personal email account (jrc@caldwellcap.com), his personal mobile device (an Ashbury Corporation 14 Pro), physical paper files maintained at two separate locations (Mr. Caldwell's residence and the offices of Caldwell Capital Advisors LLC), and the Caldwell Capital Advisors LLC shared network drive;
(2) Processing and de-duplication of collected data by the e-discovery vendor in order to eliminate duplicate documents, system files, and other non-substantive data;
(3) Application of keyword search terms and date filters agreed upon or developed in consultation with the government, as appropriate, to identify the subset of documents most likely to be responsive to the subpoena's demands;
(4) First-pass review of identified documents for responsiveness to the specific categories and requests set forth in the subpoena;
(5) Second-pass review of responsive documents for attorney-client privilege and work product protection, and the preparation of a privilege log identifying any documents withheld or redacted on the basis of such privileges; and
(6) Preparation of all responsive, non-privileged documents in proper production format, including conversion to TIFF images with associated load files and sequential Bates numbering.
We wish to assure the government that Calderwood & Harkness has not waited until the eve of the return date to begin this process. To the contrary, we have already retained Clearpath Document Solutions Inc. as our e-discovery vendor, and forensic document collection from Mr. Caldwell's electronic data sources is currently underway. We expect the collection phase to be substantially completed by the end of this week. However, the subsequent processing, review, and production phases will require additional time that simply cannot be compressed into the remaining two days before the current return date.
Proposed Rolling Production Schedule
In order to provide the government with access to responsive materials as expeditiously as possible, we propose that, in lieu of a single production on a single date, the parties agree to a rolling production schedule, with the first production to be made on or before the requested extended return date of January 20, 2023. This approach will enable the government to begin reviewing responsive materials on an ongoing basis as batches of documents are reviewed and cleared for production, rather than requiring the government to wait for a single comprehensive production at the conclusion of the entire review process. It is our intent to make a first substantial production of responsive documents on or before January 20, 2023, with additional rolling productions to follow on a regular basis as the review progresses. Our goal is to complete all document productions within approximately four to six weeks of the first production date — that is, by no later than mid- to late February 2023 — though we will endeavor to complete the process sooner if at all possible.
Mr. Caldwell's Cooperation and Good Faith
We wish to emphasize in the strongest terms that Mr. Caldwell is committed to cooperating fully with the grand jury's investigation. Mr. Caldwell understands and takes seriously his obligations under the subpoena, and he has no desire to impede or delay the government's work in any manner. The extension of time requested herein is sought solely to permit a thorough, careful, and legally compliant response to the subpoena's demands, and not for any purpose of delay, obstruction, or evasion. To that end, Mr. Caldwell has taken immediate and affirmative steps to preserve all potentially responsive documents and electronically stored information. Consistent with our advice, a formal litigation hold notice was issued on December 5, 2022, directing Mr. Caldwell and all relevant custodians at Caldwell Capital Advisors LLC to preserve and refrain from destroying, altering, or discarding any documents or data that may be responsive to the subpoena. Mr. Caldwell has confirmed his compliance with that directive, and we are monitoring the preservation process on an ongoing basis.
Testimonial Component
We separately wish to address the subpoena's command for testimony before the grand jury. We respectfully request that Mr. Caldwell's testimony obligation be deferred pending the government's review of the document production. We believe that any testimony Mr. Caldwell may be called upon to provide would be substantially more productive and efficient after the government has had a meaningful opportunity to review the documents produced in response to the subpoena. This will enable the government to focus any examination on the most relevant documents and issues, and it will allow Mr. Caldwell to provide more informed and useful testimony. Mr. Caldwell is entirely willing to discuss the scheduling of his testimony at the appropriate time following the completion — or substantial completion — of the document production, and we are happy to coordinate with your office on a mutually convenient date for that purpose.
Request for Confirmation
In light of the foregoing, we respectfully request that the government confirm its agreement to the following: (i) an extension of the subpoena's return date from December 9, 2022 to January 20, 2023; (ii) a rolling production schedule commencing on or before January 20, 2023, with the goal of completing all productions within approximately four to six weeks of that date; and (iii) a deferral of Mr. Caldwell's testimony obligation pending the government's review of the document production. We are, of course, happy to discuss any aspect of this request by telephone at your earliest convenience. I can be reached directly at (212) 554-7138 or by email at cashby@calderwoodharkness.com. We appreciate your consideration of this request and your anticipated cooperation in working toward a schedule that accommodates both the government's needs and our client's obligation to produce a complete and carefully reviewed response.
Thank you for your time and courtesy.
Very truly yours,
CALDERWOOD & HARKNESS LLP
By: ________
Conrad Ashby Partner, White Collar & Investigations Direct Dial: (212) 554-7138
Email: cashby@calderwoodharkness.com
cc: Jonathan R. Caldwell (via email)
Bernard Crawford, Esq., Calderwood & Harkness LLP (via email)