CALDERWOOD & HARKNESS LLP Attorneys at Law

450 Park Avenue, 30th Floor New York, New York 10022 Telephone: (212) 457-8300 Facsimile: (212) 457-8301

February 24, 2023

VIA ELECTRONIC TRANSMISSION AND HAND DELIVERY

Miriam T. Goldfarb 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 In the Matter of: Jonathan R. Caldwell — Third and Final Rolling Production

Dear AUSA Goldfarb:

I am Conrad Ashby, a partner at Calderwood & Harkness LLP. This firm represents Jonathan R. Caldwell in connection with the federal grand jury subpoena bearing Grand Jury No. 22-GJ-4481, which was issued on November 18, 2022, by the United States Attorney's Office for the Southern District of New York. I write to transmit the third and final rolling production of documents responsive to the subpoena and to enclose the accompanying privilege log identifying all documents withheld from production on the basis of attorney-client privilege and/or the work product doctrine. We appreciate the courtesies your office has extended throughout the production process, including the agreement to accept the document production on a rolling basis.

Enclosed herewith is the third and final rolling production of documents responsive to the subpoena. This production consists of 416 documents, Bates-stamped CALDWELL-03218 through CALDWELL-03633. Consistent with prior productions, all documents in this production have been produced in TIFF image format with accompanying load files, including extracted text and relevant metadata fields. The production has been transmitted via secure electronic file transfer to the designated government repository previously identified by your office. A hard-copy index corresponding to the electronically transmitted production is enclosed with this letter for your reference and for the convenience of your review team.

With this final production, the document production in response to Grand Jury Subpoena No. 22-GJ-4481 is now complete. For the avoidance of doubt and for the convenience of the record, the following is a cumulative summary of all three rolling productions made in response to the subpoena:

In the course of responding to the subpoena, counsel collected approximately 14,200 documents from the custodial sources identified as potentially possessing materials responsive to the subpoena's document requests. Those custodial sources were identified through consultations with Mr. Caldwell and a reasonable inquiry into the locations where responsive documents were likely to be found. Of the approximately 14,200 documents collected, 3,847 were identified as responsive to the subpoena's document requests following a review conducted by attorneys at this firm using both technology-assisted review methods and manual attorney review. Of the 3,847 documents identified as responsive, 214 have been withheld from production on the grounds of attorney-client privilege and/or the work product doctrine. Accordingly, a total of 3,633 documents (3,847 responsive documents minus 214 withheld documents) have been produced to the government across the three rolling productions described above. That figure is consistent with the cumulative production total reflected in the table set forth in the preceding paragraph.

Enclosed with this letter is a privilege log identifying each of the 214 documents withheld from production. The privilege log has been prepared in accordance with the requirements set forth in the applicable case law and the practices of this District. Each entry in the privilege log includes: (i) an entry number; (ii) the Bates number assigned to the withheld document; (iii) the date of the document or communication; (iv) the author or sender; (v) the recipient or recipients; (vi) copy recipients, where applicable; (vii) a description of the subject matter of the document sufficient to permit assessment of the privilege claim without revealing the substance of the privileged communication; and (viii) the specific privilege or protection asserted with respect to each withheld document—namely, attorney-client privilege, the work product doctrine, or both. The withheld documents primarily consist of two categories. The first category encompasses confidential communications between Mr. Caldwell and his prior counsel at Whitmore & Kessler LLP, relating to commercial legal advice sought by Mr. Caldwell in connection with business transactions and regulatory compliance matters during the period covered by the subpoena. The second category encompasses communications between Mr. Caldwell and his accounting firm, Thornberg & Whitfield CPAs, that were made at the direction of counsel for the purpose of obtaining or facilitating the provision of legal advice. These dual-purpose communications were made in confidence and at the express direction of Mr. Caldwell's legal counsel, and they are therefore protected under the attorney-client privilege. Mr. Caldwell does not waive, and hereby expressly reserves, attorney-client privilege and work product protection as to all 214 withheld documents. Should your office wish to challenge any specific privilege designation, we are prepared to discuss the matter and, if necessary, to submit the disputed documents for in camera review by the Court.

The documents produced herein have been produced in response to Grand Jury Subpoena No. 22-GJ-4481 as served on Mr. Caldwell on November 21, 2022, covering the date range of January 1, 2014 through December 31, 2021, as set forth in the subpoena. The production has been made from custodial sources in Mr. Caldwell's possession, custody, or control, including his personal email account, his mobile device, physical paper files maintained at his residence and place of business, and relevant shared drives maintained by Caldwell Capital Advisors LLC. By making this production, Mr. Caldwell does not waive and expressly reserves all rights, claims, privileges, and objections, including but not limited to objections to the scope, relevance, burden, or breadth of the subpoena, any right to assert additional privileges or protections that may be identified upon further review, and any right to challenge the propriety of the subpoena or the grand jury proceedings. The production of any document is not, and shall not be construed as, an admission by Mr. Caldwell as to the authenticity, admissibility, relevance, materiality, or accuracy of any such document, nor does the production of any document constitute a concession that any document is what it purports to be.

As you are aware, Grand Jury Subpoena No. 22-GJ-4481 also includes a command for the testimony of Mr. Caldwell before the grand jury. Pursuant to the agreement reached during the telephone conference among the undersigned, your office, and your colleague AUSA David Heinemann on December 12, 2022, Mr. Caldwell's obligation to provide testimony was deferred pending the government's review of the document production. With the document production now complete, we understand that your office will advise us if it wishes to schedule Mr. Caldwell's testimony. As of the date of this letter, no testimony date has been scheduled, and Mr. Caldwell reserves all rights with respect to the testimonial component of the subpoena, including but not limited to the right to assert his privilege against self-incrimination under the Fifth Amendment to the United States Constitution and any other applicable rights, privileges, and protections. We respectfully request that the government contact undersigned counsel in advance of scheduling any testimony date so that we may confer regarding the scope and logistics of any such appearance. Should your office have any questions regarding the document production, the privilege log, or any other aspect of Mr. Caldwell's response to the subpoena, please do not hesitate to contact me directly.

Mr. Caldwell has endeavored throughout this process to cooperate fully and in good faith with the government's investigation, and we trust that the foregoing productions reflect that commitment. All future communications regarding this matter, including any correspondence, subpoenas, or other process, should be directed to the undersigned at Calderwood & Harkness LLP, 450 Park Avenue, 30th Floor, New York, New York 10022. I may be reached directly by telephone at (212) 457-8347 or by email at cashby@calderwoodharkness.com.

Thank you for your attention to this matter. We remain available to address any questions or concerns your office may have.

Respectfully submitted,

CALDERWOOD & HARKNESS LLP

By: ________

Conrad Ashby Partner, White Collar & Investigations Practice Group Calderwood & Harkness LLP 450 Park Avenue, 30th Floor New York, New York 10022 Tel: (212) 457-8347

Email: cashby@calderwoodharkness.com

Enclosures:

1. Third and Final Rolling Production — 416 documents, Bates CALDWELL-03218 through CALDWELL-03633 (transmitted via secure electronic file transfer to designated government repository; hard-copy index enclosed herewith)

2. Privilege Log — 214 entries (hard copy enclosed herewith; electronic copy transmitted via secure electronic file transfer)

cc: Jonathan R. Caldwell (via email, jrc@caldwellcap.com) (Privileged) cc: File — Matter No. 1034-00001

Production	Date	Documents	Bates Range
First Rolling Production	January 20, 2023	1,842	CALDWELL-00001 through CALDWELL-01842
Second Rolling Production	February 10, 2023	1,375	CALDWELL-01843 through CALDWELL-03217
Third and Final Rolling Production	February 24, 2023	416	CALDWELL-03218 through CALDWELL-03633
Total	3,633	CALDWELL-00001 through CALDWELL-03633

CALDERWOOD & HARKNESS LLP Attorneys at Law
450 Park Avenue, 30th Floor New York, New York 10022 Telephone: (212) 457-8300 Facsimile: (212) 457-8301
February 24, 2023
VIA ELECTRONIC TRANSMISSION AND HAND DELIVERY
Miriam T. Goldfarb 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 In the Matter of: Jonathan R. Caldwell — Third and Final Rolling Production
Dear AUSA Goldfarb:
I am Conrad Ashby, a partner at Calderwood & Harkness LLP. This firm represents Jonathan R. Caldwell in connection with the federal grand jury subpoena bearing Grand Jury No. 22-GJ-4481, which was issued on November 18, 2022, by the United States Attorney's Office for the Southern District of New York. I write to transmit the third and final rolling production of documents responsive to the subpoena and to enclose the accompanying privilege log identifying all documents withheld from production on the basis of attorney-client privilege and/or the work product doctrine. We appreciate the courtesies your office has extended throughout the production process, including the agreement to accept the document production on a rolling basis.
Enclosed herewith is the third and final rolling production of documents responsive to the subpoena. This production consists of 416 documents, Bates-stamped CALDWELL-03218 through CALDWELL-03633. Consistent with prior productions, all documents in this production have been produced in TIFF image format with accompanying load files, including extracted text and relevant metadata fields. The production has been transmitted via secure electronic file transfer to the designated government repository previously identified by your office. A hard-copy index corresponding to the electronically transmitted production is enclosed with this letter for your reference and for the convenience of your review team.
With this final production, the document production in response to Grand Jury Subpoena No. 22-GJ-4481 is now complete. For the avoidance of doubt and for the convenience of the record, the following is a cumulative summary of all three rolling productions made in response to the subpoena:
In the course of responding to the subpoena, counsel collected approximately 14,200 documents from the custodial sources identified as potentially possessing materials responsive to the subpoena's document requests. Those custodial sources were identified through consultations with Mr. Caldwell and a reasonable inquiry into the locations where responsive documents were likely to be found. Of the approximately 14,200 documents collected, 3,847 were identified as responsive to the subpoena's document requests following a review conducted by attorneys at this firm using both technology-assisted review methods and manual attorney review. Of the 3,847 documents identified as responsive, 214 have been withheld from production on the grounds of attorney-client privilege and/or the work product doctrine. Accordingly, a total of 3,633 documents (3,847 responsive documents minus 214 withheld documents) have been produced to the government across the three rolling productions described above. That figure is consistent with the cumulative production total reflected in the table set forth in the preceding paragraph.
Enclosed with this letter is a privilege log identifying each of the 214 documents withheld from production. The privilege log has been prepared in accordance with the requirements set forth in the applicable case law and the practices of this District. Each entry in the privilege log includes: (i) an entry number; (ii) the Bates number assigned to the withheld document; (iii) the date of the document or communication; (iv) the author or sender; (v) the recipient or recipients; (vi) copy recipients, where applicable; (vii) a description of the subject matter of the document sufficient to permit assessment of the privilege claim without revealing the substance of the privileged communication; and (viii) the specific privilege or protection asserted with respect to each withheld document—namely, attorney-client privilege, the work product doctrine, or both. The withheld documents primarily consist of two categories. The first category encompasses confidential communications between Mr. Caldwell and his prior counsel at Whitmore & Kessler LLP, relating to commercial legal advice sought by Mr. Caldwell in connection with business transactions and regulatory compliance matters during the period covered by the subpoena. The second category encompasses communications between Mr. Caldwell and his accounting firm, Thornberg & Whitfield CPAs, that were made at the direction of counsel for the purpose of obtaining or facilitating the provision of legal advice. These dual-purpose communications were made in confidence and at the express direction of Mr. Caldwell's legal counsel, and they are therefore protected under the attorney-client privilege. Mr. Caldwell does not waive, and hereby expressly reserves, attorney-client privilege and work product protection as to all 214 withheld documents. Should your office wish to challenge any specific privilege designation, we are prepared to discuss the matter and, if necessary, to submit the disputed documents for in camera review by the Court.
The documents produced herein have been produced in response to Grand Jury Subpoena No. 22-GJ-4481 as served on Mr. Caldwell on November 21, 2022, covering the date range of January 1, 2014 through December 31, 2021, as set forth in the subpoena. The production has been made from custodial sources in Mr. Caldwell's possession, custody, or control, including his personal email account, his mobile device, physical paper files maintained at his residence and place of business, and relevant shared drives maintained by Caldwell Capital Advisors LLC. By making this production, Mr. Caldwell does not waive and expressly reserves all rights, claims, privileges, and objections, including but not limited to objections to the scope, relevance, burden, or breadth of the subpoena, any right to assert additional privileges or protections that may be identified upon further review, and any right to challenge the propriety of the subpoena or the grand jury proceedings. The production of any document is not, and shall not be construed as, an admission by Mr. Caldwell as to the authenticity, admissibility, relevance, materiality, or accuracy of any such document, nor does the production of any document constitute a concession that any document is what it purports to be.
As you are aware, Grand Jury Subpoena No. 22-GJ-4481 also includes a command for the testimony of Mr. Caldwell before the grand jury. Pursuant to the agreement reached during the telephone conference among the undersigned, your office, and your colleague AUSA David Heinemann on December 12, 2022, Mr. Caldwell's obligation to provide testimony was deferred pending the government's review of the document production. With the document production now complete, we understand that your office will advise us if it wishes to schedule Mr. Caldwell's testimony. As of the date of this letter, no testimony date has been scheduled, and Mr. Caldwell reserves all rights with respect to the testimonial component of the subpoena, including but not limited to the right to assert his privilege against self-incrimination under the Fifth Amendment to the United States Constitution and any other applicable rights, privileges, and protections. We respectfully request that the government contact undersigned counsel in advance of scheduling any testimony date so that we may confer regarding the scope and logistics of any such appearance. Should your office have any questions regarding the document production, the privilege log, or any other aspect of Mr. Caldwell's response to the subpoena, please do not hesitate to contact me directly.
Mr. Caldwell has endeavored throughout this process to cooperate fully and in good faith with the government's investigation, and we trust that the foregoing productions reflect that commitment. All future communications regarding this matter, including any correspondence, subpoenas, or other process, should be directed to the undersigned at Calderwood & Harkness LLP, 450 Park Avenue, 30th Floor, New York, New York 10022. I may be reached directly by telephone at (212) 457-8347 or by email at cashby@calderwoodharkness.com.
Thank you for your attention to this matter. We remain available to address any questions or concerns your office may have.
Respectfully submitted,
CALDERWOOD & HARKNESS LLP
By: ________
Conrad Ashby Partner, White Collar & Investigations Practice Group Calderwood & Harkness LLP 450 Park Avenue, 30th Floor New York, New York 10022 Tel: (212) 457-8347
Email: cashby@calderwoodharkness.com
Enclosures:
1. Third and Final Rolling Production — 416 documents, Bates CALDWELL-03218 through CALDWELL-03633 (transmitted via secure electronic file transfer to designated government repository; hard-copy index enclosed herewith)
2. Privilege Log — 214 entries (hard copy enclosed herewith; electronic copy transmitted via secure electronic file transfer)
cc: Jonathan R. Caldwell (via email, jrc@caldwellcap.com) (Privileged) cc: File — Matter No. 1034-00001
Production | Date | Documents | Bates Range
First Rolling Production | January 20, 2023 | 1,842 | CALDWELL-00001 through CALDWELL-01842
Second Rolling Production | February 10, 2023 | 1,375 | CALDWELL-01843 through CALDWELL-03217
Third and Final Rolling Production | February 24, 2023 | 416 | CALDWELL-03218 through CALDWELL-03633
Total | 3,633 | CALDWELL-00001 through CALDWELL-03633

CALDERWOOD & HARKNESS LLP Attorneys at Law

VIA ELECTRONIC TRANSMISSION AND HAND DELIVERY

CALDERWOOD & HARKNESS LLP

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