PRIVILEGED & CONFIDENTIAL
CALDERWOOD & HARKNESS LLP Attorneys at Law
450 Park Avenue, 30th Floor New York, New York 10022 Telephone: (212) 554-8000 Facsimile: (212) 554-8001 www.calderwoodharkness.com
January 18, 2023
Via Electronic Mail and Hand Delivery
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 — Documents of Jonathan R. Caldwell; Request for Extension of Time for Second Rolling Production
Dear Ms. Goldfarb:
I write on behalf of our client, Jonathan R. Caldwell, in connection with the federal grand jury subpoena issued on November 18, 2022, bearing Grand Jury No. 22-GJ-4481, by the United States Attorney's Office for the Southern District of New York. As you know, this firm represents Mr. Caldwell in this matter and has served as his sole point of contact with your office since our appearance on November 28, 2022.
I refer to our prior correspondence concerning the subpoena's return date and the rolling production schedule to which the parties agreed, as well as to your email of December 8, 2022, in which you graciously extended the original return date of December 9, 2022, to January 20, 2023, and confirmed the government's agreement to accept responsive documents on a rolling basis in multiple tranches. We are grateful for the accommodation your office has shown to date and for the cooperative and professional manner in which you and your colleagues have approached the production process.
The purpose of this letter is to respectfully request a brief additional extension of time — specifically, to February 10, 2023 — for the submission of the second rolling production of responsive documents. As set forth in greater detail below, this request is necessitated by the volume and complexity of the remaining documents under review, the care required in conducting an appropriate privilege analysis, and our firm's commitment to ensuring the completeness and accuracy of each production tranche. We do not make this request lightly and are confident that the modest extension sought will not prejudice the government's investigation in any respect.
I. Status Report on the First Rolling Production
We are pleased to confirm that the first rolling production of responsive documents was timely completed on January 20, 2023, in accordance with the negotiated extended return date. The first production consisted of 1,842 documents, Bates-stamped CALDWELL-00001 through CALDWELL-01842. All documents were produced in TIFF image format with accompanying load files containing extracted text, metadata, and standard database fields, and were delivered to your office via secure electronic transfer through our firm's encrypted file transfer platform.
The documents included in the first production covered a substantial portion of the responsive email correspondence, investment-related documentation, and transactional records falling within the subpoena's scope. In assembling this initial tranche, we prioritized the categories of documents that we understood, based on our December 12, 2022, telephone conference with you and AUSA Rivera, to be of particular interest to the government, including transactional communications and wire transfer records from the 2017–2019 period. We believe the first production reflects our good-faith effort to provide the government with a meaningful and substantial body of responsive material as promptly as possible.
II. Description of Remaining Work and Anticipated Volume of Second Production
The document review and privilege analysis for the remaining collected materials is ongoing and proceeding diligently. As we previously disclosed to your office, the collection phase yielded approximately 14,200 documents from all identified custodians and sources, encompassing approximately 8.3 gigabytes of data. The sources from which documents were collected include:
(a) Mr. Caldwell's personal email account maintained at jrc@caldwellcap.com, hosted on the Caldwell Capital Advisors LLC mail server;
(b) Mr. Caldwell's personal mobile device (an Ashbury Corporation 14 Pro), from which text messages, attachments, and application data were forensically extracted;
(c) Physical files maintained at Mr. Caldwell's personal residence in Scarsdale, New York, and at the offices of Caldwell Capital Advisors LLC located at 280 Madison Avenue, Suite 1205, New York, New York 10016; and
(d) The Caldwell Capital Advisors LLC shared network drive, including folders to which Mr. Caldwell had access or to which he contributed documents during the relevant period.
These sources span the full date range specified in the subpoena — January 1, 2014, through December 31, 2021 — and cover the subject matter categories identified in each of the subpoena's fourteen document requests.
All collected documents were processed and hosted by Clearpath Document Solutions Inc., a nationally recognized litigation support vendor, and have undergone first-pass responsiveness review by members of our engagement team. The first-pass review identified responsive documents and separated out clearly non-responsive materials, including personal correspondence, spam, and duplicates. Our engagement team is now completing the second-pass privilege review of the remaining body of responsive documents. This review requires particular attention to communications potentially protected by the attorney-client privilege and the work product doctrine, the details of which I address further below.
Based on the progress of the review to date, we estimate that the second rolling production will consist of approximately 1,300 to 1,400 additional responsive documents. These documents cover the following categories, among others:
• Remaining email correspondence between Mr. Caldwell and various counterparties, investors, co-venturers, and service providers not included in the first production tranche;
• Fund-related subscription documents, limited partnership agreements, side letters, and investor correspondence relating to Aegean Realty Partners LLC and its affiliated investment funds, namely Aegean Realty Fund III LP, Aegean Realty Fund IV LP, and Aegean Realty Fund V LP;
• Audited and unaudited financial statements, capital account statements, and distribution notices for the foregoing funds during the relevant period;
• Wire transfer confirmations, bank statements, and related payment records documenting capital flows among Mr. Caldwell, the Aegean funds, and the affiliated joint venture entities; and
• Property-related records, including purchase and sale agreements, title documents, environmental reports, and development-stage correspondence relating to the joint venture entities 710 Flatbush Holdings LLC and Stavros-Caldwell Industrial LLC.
We anticipate that a third and final production of a smaller volume of remaining documents, together with a complete and detailed privilege log conforming to the requirements of Local Civil Rule 26.2 (applied by analogy), will follow within approximately two weeks of the second production — that is, on or about February 24, 2023. We will, of course, keep your office apprised of the timing of this final tranche and will endeavor to deliver it sooner if circumstances permit.
III. Basis for the Extension Request
The additional time requested is necessitated by the volume and complexity of the documents remaining under review, combined with the need for careful and methodical privilege analysis. As you are aware, the privilege review in this matter presents several areas of particular sensitivity:
First, the collected materials include a significant number of communications between Mr. Caldwell and his prior outside counsel, Whitmore & Kessler LLP, which represented Mr. Caldwell and certain of his affiliated entities in connection with various commercial transactions, fund formation matters, and regulatory inquiries during the period covered by the subpoena. Many of these communications contain legal advice rendered in confidence and are clearly privileged; others, however, are mixed-purpose communications that require individualized assessment to determine whether the dominant purpose of the communication was the rendering or seeking of legal advice, or whether the communication was primarily of a business nature.
Second, the collected materials also include communications with Mr. Caldwell's accounting firm, Thornberg & Whitfield CPAs, certain of which involve advice rendered by that firm in a capacity that may implicate privilege protections. Specifically, we are evaluating whether particular communications fall within the scope of the tax-advice privilege recognized under United States v. Kovel, 296 F.2d 918 (2d Cir. 1961), where the accountants were engaged at the direction of counsel to assist in the provision of legal advice. The Kovel analysis requires a document-by-document assessment of the context and purpose of each communication, which is inherently time-intensive.
We are committed to completing the privilege review and preparing the second rolling production as expeditiously as possible. The proposed extended deadline of February 10, 2023, represents only a twenty-one-day extension beyond the date on which the first tranche was delivered and, in our judgment, reflects the minimum additional time reasonably necessary to complete the review with the thoroughness and accuracy that both the government and our client are entitled to expect.
A complete privilege log identifying all documents withheld on the basis of privilege will accompany the third and final production tranche, or will follow closely thereafter. We are prepared to meet and confer with your office regarding any privilege disputes that may arise upon the government's review of the log.
IV. Assurance of Good Faith and Continued Cooperation
We wish to assure you that Mr. Caldwell continues to cooperate fully and in good faith with the grand jury's inquiry. He has instructed this firm to produce all responsive, non-privileged documents as promptly as practicable, and he has made himself available for consultation whenever questions have arisen during the review process regarding the source, context, or content of particular documents.
No documents responsive to the subpoena have been destroyed, altered, concealed, or withheld, except as may be required by applicable legal privileges. All documents withheld on the basis of privilege will be identified on the forthcoming privilege log with sufficient specificity to permit the government to assess the validity of the privilege claims.
This extension request is made in good faith and solely to ensure the completeness and accuracy of the document production. It is not made for purposes of delay or to obstruct the grand jury's investigation in any manner. We recognize the seriousness and importance of the government's inquiry and remain committed to fulfilling Mr. Caldwell's obligations under the subpoena.
Finally, we note that Mr. Caldwell's testimony obligation before the grand jury remains deferred pending the government's review of the document production, as was agreed upon during the December 12, 2022, telephone conference among you, AUSA Rivera, and the undersigned. We understand that your office will contact us to discuss scheduling of Mr. Caldwell's testimony, if needed, once the document production has been completed and your team has had a reasonable opportunity to review the produced materials. We remain prepared to cooperate in that process as well.
V. Reservation of Rights
Nothing in this letter, and nothing in the production of documents to date or hereafter, shall constitute or be deemed a waiver of any rights, objections, or defenses available to Mr. Caldwell, whether under the United States Constitution, the Federal Rules of Criminal Procedure, or any other applicable law or rule. Mr. Caldwell expressly reserves all rights and objections not previously and expressly waived, including but not limited to objections based on relevance, privilege, the attorney-client privilege, the work product doctrine, the right against self-incrimination under the Fifth Amendment, and the scope and breadth of the subpoena. The voluntary production of documents in response to the subpoena shall not be construed as a concession that any particular document or category of documents is relevant to the grand jury's investigation or admissible in any proceeding.
We respectfully request that you confirm your agreement to the extended deadline of February 10, 2023, for the second rolling production of responsive documents. Your confirmation may be communicated either by countersigning a copy of this letter in the space provided below and returning it to us, or by return email to the undersigned at cashby@calderwoodharkness.com. We are happy to discuss any questions, concerns, or alternative proposals you may have at your convenience.
Should you wish to reach me directly, my contact information is as follows:
Conrad Ashby Telephone: (212) 554-8127
Email: cashby@calderwoodharkness.com
Thank you for your continued courtesy and professionalism in this matter. We look forward to hearing from you.
Very truly yours,
CALDERWOOD & HARKNESS LLP
By: ________
Conrad Ashby Partner, White Collar & Investigations Calderwood & Harkness LLP 450 Park Avenue, 30th Floor New York, New York 10022 Tel: (212) 554-8127
Email: cashby@calderwoodharkness.com
AGREED AND CONFIRMED:
________________________________________
Miriam T. Goldfarb Assistant United States Attorney Southern District of New York
Date: ________
cc: Jonathan R. Caldwell (via email, jrc@caldwellcap.com) cc: File — Matter No. 1034-00001