CALDERWOOD & HARKNESS LLP 555 California Street, 40th Floor San Francisco, California 94104 Telephone: (415) 555-7200 Facsimile: (415) 555-7201 www.calderwoodharkness.com
PRIVILEGED AND CONFIDENTIAL ATTORNEY-CLIENT PRIVILEGED / ATTORNEY WORK PRODUCT
This memorandum and all attachments are protected from disclosure by the attorney-client privilege and/or the attorney work product doctrine. This memorandum is prepared in anticipation of litigation and at the direction of counsel. It is intended solely for the use of the individuals identified herein and should not be disclosed to any third party without the prior written authorization of Calderwood & Harkness LLP. Any unauthorized disclosure may result in waiver of applicable privileges.
MEMORANDUM
Right-click to update Table of Contents
I. PURPOSE AND SCOPE
This memorandum establishes the data collection protocol and custodian list to be employed by Redstone Digital Forensics Inc. ("Redstone") in connection with the forensic collection and preservation of electronically stored information ("ESI") and hard-copy documents from Torchlight Mining Corp. ("TMC") and its wholly owned subsidiary Torchlight Mining (U.S.) Inc. ("TMC US"). The protocol set forth herein is intended to govern all aspects of the collection process, from custodian identification through data transport, and to provide a comprehensive framework for ensuring that all activities are conducted in a forensically defensible manner.
The collection is undertaken in response to Grand Jury Subpoena Duces Tecum No. GJ-22-0194-SD-003 (the "Subpoena"), served on TMC on February 14, 2022, and issued by the United States Department of Justice, Antitrust Division, San Francisco Field Office, in connection with the grand jury investigation (GJ-22-0194, N.D. Cal.) into suspected price-fixing, market allocation, and bid-rigging in the North American specialty-minerals sector. The products at issue include high-purity feldspar, industrial talc, and rare-earth concentrates. The investigation has been assigned to the grand jury sitting in the Northern District of California, San Francisco Division.
The protocol described in this memorandum is designed to ensure comprehensive, defensible, and forensically sound collection of all potentially responsive documents and ESI while preserving metadata integrity and chain of custody at every stage. Adherence to this protocol is essential to demonstrating TMC's good-faith compliance with the Subpoena, minimizing the risk of spoliation arguments, and supporting the defensibility of any productions ultimately made to the DOJ.
This memorandum supplements, and should be read in conjunction with, the following previously issued documents:
(a) The firm-wide litigation hold notice issued on March 1, 2022, to all TMC and TMC US employees company-wide;
(b) The targeted litigation hold notice issued on March 1, 2022, to specific employees of the U.S. Specialty Minerals Division;
(c) The Memorandum re Document Preservation Obligations dated March 2, 2022, from Aaron Liu to Priya Anand, General Counsel, TMC, which sets forth TMC's obligations with respect to the identification, preservation, and non-destruction of potentially relevant materials; and
(d) The Privilege Review Protocol Memorandum dated March 10, 2022, which governs the review of collected materials for attorney-client privilege and work product protections prior to any production.
Redstone Digital Forensics Inc. was formally retained by Calderwood & Harkness LLP ("C&H" or the "Firm") on March 15, 2022, pursuant to a vendor engagement letter executed by Elaine Forsythe on behalf of C&H and addressed to Neil Ashworth, Project Director, at Redstone's principal offices at 7925 Jones Branch Drive, Suite 600, McLean, Virginia 22102. Redstone's engagement is structured to ensure that its work is performed under the direction and at the request of counsel, and that all collection activities and resulting work product are protected by the attorney-client privilege and/or the work product doctrine. Redstone's personnel have executed confidentiality and non-disclosure agreements as required under the engagement letter.
II. BACKGROUND
A. The Investigation
On or about February 10, 2022, the Antitrust Division of the United States Department of Justice formally opened a grand jury investigation before Grand Jury No. GJ-22-0194, empaneled in the United States District Court for the Northern District of California, San Francisco Division. The investigation is being led by DOJ Trial Attorney Denise Kowalski of the San Francisco Field Office, with the assistance of additional Antitrust Division staff attorneys and Federal Bureau of Investigation agents.
The investigation concerns suspected violations of Section 1 of the Sherman Act, 15 U.S.C. § 1, specifically allegations of price-fixing, market allocation, and bid-rigging in the North American specialty-minerals sector. The alleged conspiracy period spans approximately January 2017 through August 2021, a period of approximately four and a half years.
The products at the center of the investigation are:
(i) High-purity feldspar — a mineral used extensively in glass manufacturing, ceramics, and as a flux in metallurgical processes;
(ii) Industrial talc — a hydrated magnesium silicate used in paper, plastics, paints, coatings, and personal care products; and
(iii) Rare-earth concentrates — mineral concentrates containing rare-earth elements used in high-technology applications, including electronics, magnets, catalysts, and defense systems.
TMC's U.S. Specialty Minerals Division, headquartered in Reno, Nevada, is the business unit at the center of the investigation. The Division is responsible for the extraction, processing, and sale of all three product categories in the North American market. In fiscal year 2021, the U.S. Specialty Minerals Division generated revenue of approximately USD 687 million, representing a significant portion of TMC's total consolidated revenues.
Based on publicly available information and materials provided in connection with the Subpoena, the following entities have been identified as co-subjects or co-targets of the investigation:
•  Ridgecrest Minerals Inc. — A Delaware corporation headquartered in Denver, Colorado. Ridgecrest is a major competitor of TMC in the North American specialty-minerals market, with particular strength in high-purity feldspar and industrial talc.
•  Pinnacle Earth Resources Ltd. — An Ontario corporation with dual operations in Sudbury, Ontario, Canada and Salt Lake City, Utah. Pinnacle competes with TMC and Ridgecrest across all three product categories and has a significant presence in the rare-earth concentrates market.
In addition, the following entity has been identified as a cooperating witness entity:
•  Cascade Chemical Supply Co. — A Washington corporation headquartered in Spokane, Washington. Cascade is a mid-tier competitor in the industrial talc and feldspar markets. Based on information available to the Firm, Cascade entered into a cooperation agreement with the DOJ Antitrust Division on or about September 15, 2021, approximately five months prior to the formal commencement of the grand jury investigation.
Key individuals who have been identified by name in DOJ materials, including the Subpoena and related correspondence, include the following:
•  Gavin Holt — Former Vice President, U.S. Specialty Minerals Sales, TMC. Mr. Holt departed TMC effective September 30, 2021. He is identified in DOJ materials as a central figure in the alleged pricing communications among competitors. Mr. Holt has retained separate personal counsel, Briarcliff Law Group PLLC (Patrick Dunleavy, Esq., 50 California Street, Suite 2800, San Francisco, CA 94111).
•  Carl Edgerton — Vice President of Sales, Ridgecrest Minerals Inc. Mr. Edgerton is identified as a key participant in alleged competitor contacts.
•  Kevin Tsang — Former Senior Vice President, Commercial Operations, Pinnacle Earth Resources Ltd. Mr. Tsang is identified as a participant in alleged market-allocation discussions.
The Firm is continuing to develop its understanding of the scope and focus of the investigation through analysis of the Subpoena, review of DOJ correspondence, and the ongoing internal investigation being conducted at TMC.
B. The Subpoena
Grand Jury Subpoena Duces Tecum No. GJ-22-0194-SD-003 was served on TMC on February 14, 2022, at TMC's registered agent for service of process in the State of California. The Subpoena commands the production of documents and ESI in ten broad categories (summarized below in Section II.C) and originally set a return date of March 16, 2022.
On February 22, 2022, Elaine Forsythe and Aaron Liu of Calderwood & Harkness submitted a letter to DOJ Trial Attorney Denise Kowalski acknowledging receipt of the Subpoena on behalf of TMC, confirming that TMC intended to comply with its obligations, and requesting a sixty (60)-day extension of the initial return date to allow for adequate time to implement litigation holds, identify custodians and data sources, retain a forensic collection vendor, and commence the collection, processing, and review of responsive materials. As of the date of this memorandum, the DOJ has verbally indicated that a rolling production schedule will be acceptable, subject to good-faith compliance and the prompt commencement of production.
For a detailed, specification-by-specification analysis of the Subpoena's document categories, applicable time frames, and potential scope limitations, the reader is directed to the Subpoena Analysis Memorandum dated February 28, 2022, prepared by Aaron Liu and Monica Reyes. That memorandum addresses each document category in detail, identifies potential ambiguities and overbreadth issues, and recommends an approach to DOJ regarding the scope of production. The present memorandum does not replicate that analysis but instead focuses on the operational protocol for collection.
C. The Subpoena's Document Categories (Summary)
The Subpoena specifies ten principal categories of documents and ESI to be produced. A brief summary of these categories is set forth below for reference purposes. The complete text of the Subpoena should be consulted for the precise language of each specification.
(i) Pricing Communications and Pricing Decisions. All documents and communications relating to the pricing of high-purity feldspar, industrial talc, and rare-earth concentrates in the North American market, including but not limited to price lists, price announcements, price increase or decrease communications, pricing strategies, and internal deliberations regarding pricing.
(ii) Competitor Contacts and Communications. All documents and communications between or among TMC employees and any employee, officer, director, agent, or representative of any competitor, including but not limited to Ridgecrest Minerals Inc., Pinnacle Earth Resources Ltd., and Cascade Chemical Supply Co., relating in any way to the products at issue.
(iii) Trade Association Materials and Communications. All documents and communications relating to TMC's participation in the North American Specialty Minerals Council ("NASMC"), including meeting agendas, minutes, attendee lists, presentation materials, committee assignments, and any communications with other NASMC members relating to pricing, production volumes, market allocation, or customer assignments.
(iv) Customer Allocation Documents. All documents and communications relating to the allocation, division, or assignment of customers, territories, or market segments for the products at issue, whether among TMC business units or in coordination with any competitor.
(v) Bid and Proposal Documents. All documents and communications relating to bids, proposals, requests for quotation ("RFQs"), and competitive tenders for the supply of the products at issue, including bid preparation materials, bid decision memoranda, and communications regarding the outcome of bids.
(vi) Internal Pricing Analyses and Pricing Models. All pricing analyses, pricing models, cost-plus analyses, margin analyses, competitive pricing benchmarks, and related analytical materials prepared by or for TMC relating to the products at issue.
(vii) Sales Reports and Revenue Data. All periodic sales reports, revenue summaries, budget-to-actual comparisons, and financial performance analyses relating to the U.S. Specialty Minerals Division's sales of the products at issue.
(viii) Organizational Charts and Personnel Records. Organizational charts, reporting structures, and personnel records (including hiring, termination, and departure records) for the U.S. Specialty Minerals Division, with particular emphasis on the Sales and Pricing Analytics functions.
(ix) Compliance Program Materials. All documents and communications relating to TMC's antitrust compliance program, including policy statements, training materials, training attendance records, compliance certifications, and any reports of potential violations or compliance concerns.
(x) Communications via Messaging Platforms. All communications transmitted or received via any messaging platform, including but not limited to text messages (SMS/MMS), instant messaging applications, and encrypted messaging applications, with specific reference to the application known as "VaultChat." This category encompasses all such communications relating to any of the topics described in categories (i) through (ix) above.
The breadth of these categories underscores the need for a comprehensive collection strategy that captures data from all relevant custodians and data sources, as detailed in the sections that follow.
III. CUSTODIAN IDENTIFICATION AND PRIORITIZATION
A. Custodian Selection Methodology
The identification of custodians for purposes of this collection protocol was conducted through a multi-step process designed to ensure completeness while also permitting a tiered approach to collection that prioritizes the most relevant individuals. The following sources were consulted in identifying and selecting custodians:
(i) Analysis of the Subpoena Specifications. Each document category in Subpoena No. GJ-22-0194-SD-003 was analyzed to determine which TMC and TMC US employees, both current and former, are most likely to possess, have created, or have received documents responsive to the Subpoena's specifications.
(ii) Review of TMC Organizational Charts. Current and historical organizational charts for the U.S. Specialty Minerals Division and related corporate functions (Legal, Finance, Compliance, Human Resources, and Information Technology) were reviewed to identify individuals in positions relevant to the conduct under investigation and the document categories specified in the Subpoena.
(iii) Input from TMC General Counsel and IT Department. Priya Anand, General Counsel of TMC, provided input on individuals with knowledge of the matters under investigation, as well as individuals who may have relevant documents or data in their possession. TMC's IT department provided information regarding system access, user accounts, data repositories, and device assignments for identified individuals.
(iv) Litigation Hold Custodian List. The custodian list developed in connection with the firm-wide and targeted litigation hold notices issued on March 1, 2022 served as a baseline for the collection custodian list. The collection custodian list has been expanded beyond the litigation hold list based on the additional sources of information described herein.
(v) Names Identified in DOJ Correspondence and the Subpoena. The Subpoena and related DOJ correspondence specifically identify certain individuals by name, including Gavin Holt. All such individuals have been included as custodians.
(vi) Preliminary Review of Gavin Holt's Email Threads. A preliminary review of email threads involving Gavin Holt's TMC email account was conducted to identify other TMC employees who were frequent correspondents or recipients of communications on topics relevant to the investigation. This review identified several additional individuals who have been added to the custodian list.
Based on the foregoing analysis, custodians have been categorized into three priority tiers reflecting their assessed relevance to the alleged conduct and the urgency of collecting their data. The tiered approach is designed to ensure that the most critical data is collected first, thereby enabling the earliest possible commencement of document review and production, while ensuring that all identified custodians are collected within the overall timeline established in Section IX below.
B. Tier 1 — Primary Custodians (Highest Priority — Immediate Collection)
Tier 1 custodians are individuals who are most directly connected to the alleged anticompetitive conduct, who are specifically identified in DOJ materials, or whose positions place them at the center of the document categories specified in the Subpoena. Collection from Tier 1 custodians is to commence immediately upon finalization of this protocol and is to be completed no later than March 28, 2022. Six (6) individuals have been designated as Tier 1 custodians:
1. Gavin Holt
•  Title: Former Vice President, U.S. Specialty Minerals Sales, TMC
•  Status: Former employee (departed September 30, 2021)
•  Department: U.S. Specialty Minerals Division — Sales
•  Basis for Inclusion: Mr. Holt is the central figure identified in DOJ materials in connection with the alleged pricing communications among competitors. He served as the head of the U.S. Specialty Minerals Division's sales function throughout the alleged conspiracy period (January 2017 – August 2021) and is specifically named in the Subpoena. He reportedly maintained contact with Carl Edgerton (Ridgecrest) and Kevin Tsang (Pinnacle) through both conventional and encrypted communication channels.
•  Special Note: Mr. Holt is a former employee who resigned from TMC effective September 30, 2021, approximately four and a half months before the Subpoena was served and approximately five months before the firm-wide litigation hold was issued. Collection with respect to Mr. Holt is limited to TMC-controlled data sources, including corporate email archives, shared drive files, and any TMC-issued devices that were returned upon his departure. Mr. Holt's personal devices, personal email accounts, and personal VaultChat account are outside TMC's control. Mr. Holt has retained separate personal counsel: Briarcliff Law Group PLLC, represented by Patrick Dunleavy, Esq., 50 California Street, Suite 2800, San Francisco, CA 94111. Calderwood & Harkness will coordinate separately with Briarcliff Law Group regarding any requests for personal device data, subject to Mr. Holt's constitutional rights under the Fifth Amendment and his separate representation.
2. Sandra Chu
•  Title: Director, Pricing Analytics, U.S. Specialty Minerals Division, TMC
•  Status: Current employee
•  Department: U.S. Specialty Minerals Division — Pricing Analytics
•  Basis for Inclusion: Ms. Chu reported directly to Gavin Holt during the relevant period and was responsible for executing pricing adjustments for feldspar, talc, and rare-earth concentrates across the North American market. She maintained and oversaw the Pricing Analytics team's databases, pricing models, and published price lists. Ms. Chu is expected to be a key fact witness regarding TMC's internal pricing processes, the implementation of price changes, and the flow of pricing information within the U.S. Specialty Minerals Division.
3. Thomas Eriksen
•  Title: Regional Sales Manager (Western Region), U.S. Specialty Minerals Division, TMC
•  Status: Current employee
•  Department: U.S. Specialty Minerals Division — Sales (Western Region)
•  Basis for Inclusion: Mr. Eriksen attended at least four NASMC conferences during the alleged conspiracy period (2017 Nashville, 2018 Arlington, 2019 Scottsdale, and 2020 Orlando) and is identified in preliminary email review as having attended side meetings with representatives of competitor companies at these conferences. His email communications contain references to conversations with Ridgecrest and Pinnacle personnel. Mr. Eriksen's Western Region territory includes key specialty minerals customers in California, Nevada, Arizona, and the Pacific Northwest.
4. Priya Anand
•  Title: General Counsel, TMC
•  Status: Current employee
•  Department: Legal
•  Basis for Inclusion: Ms. Anand oversaw the initial document preservation response upon learning of the grand jury investigation. She is relevant to the history and implementation of TMC's antitrust compliance program (first adopted in 2014), corporate knowledge of the U.S. Specialty Minerals Division's commercial practices, and any prior reports of compliance concerns. Ms. Anand's data is also relevant to Subpoena category (ix) (compliance program materials). Note: Significant portions of Ms. Anand's data may be subject to attorney-client privilege; enhanced privilege review protocols will apply.
5. Søren Dalmqvist
•  Title: Chief Executive Officer, TMC
•  Status: Current employee
•  Department: Executive / Office of the CEO
•  Basis for Inclusion: As CEO, Mr. Dalmqvist is the ultimate decision-maker with respect to TMC's cooperation strategy, settlement posture, and corporate governance response to the investigation. While there is no indication that Mr. Dalmqvist had personal involvement in the alleged anticompetitive conduct, CEO-level communications regarding the U.S. Specialty Minerals Division — including strategy presentations, divisional performance reviews, and executive committee discussions — are responsive to multiple Subpoena categories. Mr. Dalmqvist's data is also relevant to demonstrating the scope (or absence) of corporate-level awareness of divisional sales practices.
6. Richard Fong
•  Title: Chief Financial Officer, TMC
•  Status: Current employee
•  Department: Finance
•  Basis for Inclusion: Mr. Fong has knowledge of the U.S. Specialty Minerals Division's financial performance, pricing authority delegations, budgeting processes, and revenue reporting. His files are expected to contain financial data, margin analyses, and divisional performance reports responsive to Subpoena categories (vi) and (vii). Mr. Fong's communications with the U.S. Specialty Minerals Division regarding pricing approvals and financial targets are also relevant.
C. Tier 2 — Secondary Custodians (High Priority — Collection Within 10 Business Days of Tier 1)
Tier 2 custodians are individuals who, while not at the center of the alleged conduct, occupy positions that place them in regular contact with responsive documents and communications. Collection from Tier 2 custodians is to commence no later than March 28, 2022, and is to be completed no later than April 4, 2022. Approximately twelve to fifteen (12–15) individuals have been identified for Tier 2 designation, including the following categories of personnel:
(a) Regional Sales Managers (Eastern, Central, and Southern Regions). The U.S. Specialty Minerals Division's sales function is organized by geographic region. In addition to Thomas Eriksen (Western Region, Tier 1), the Regional Sales Managers for the Eastern, Central, and Southern regions are identified as Tier 2 custodians. Their names are to be confirmed with TMC Human Resources; based on current organizational charts, these individuals are believed to be Rachel Gutierrez (Eastern Region), David Kowalczyk (Central Region), and James Thibodeau (Southern Region), respectively.
(b) Pricing Analysts and Pricing Coordinators Reporting to Sandra Chu. The Pricing Analytics team includes several analysts and coordinators who were responsible for preparing pricing models, executing pricing adjustments, and maintaining pricing databases. These individuals are expected to possess documents responsive to Subpoena categories (i) and (vi). Specific names are to be confirmed with Sandra Chu and TMC HR.
(c) General Manager / Divisional Head, U.S. Specialty Minerals Division. The individual who served as the overall head of the U.S. Specialty Minerals Division during the relevant period (currently believed to be Mark Vandermeer, Senior Vice President and General Manager) reported to executive leadership and had oversight of both the Sales and Pricing Analytics functions.
(d) Marketing Personnel. TMC marketing personnel responsible for specialty minerals product lines, including product managers and marketing directors who were involved in competitive intelligence gathering, market positioning, and customer communications.
(e) Bid and Proposal Coordinators. TMC personnel responsible for the preparation, submission, and tracking of bids and proposals for the supply of feldspar, talc, and rare-earth concentrates. These individuals possess documents directly responsive to Subpoena category (v).
(f) NASMC Conference Attendees. TMC personnel who attended NASMC conferences during the alleged conspiracy period, as identified through cross-referencing NASMC registration records and TMC travel and expense records. This category may overlap with other Tier 2 designations (e.g., regional sales managers who also attended conferences).
(g) Antitrust Compliance Officer(s). The TMC personnel responsible for administering the company's antitrust compliance program, which was adopted in 2014. This includes the individual(s) who developed and delivered compliance training, maintained training records, and received any reports of potential antitrust violations. This custodian's data is directly responsive to Subpoena category (ix).
The precise number and identity of Tier 2 custodians will be finalized in consultation with TMC General Counsel and TMC HR within five (5) business days of the date of this memorandum, and an updated custodian list will be circulated to all parties.
D. Tier 3 — Tertiary Custodians (Standard Priority — Collection Within 20 Business Days of Tier 1)
Tier 3 custodians are individuals whose data is relevant to the investigation but whose connection to the alleged conduct is more attenuated or whose data is primarily relevant for contextual, organizational, or administrative purposes. Collection from Tier 3 custodians is to commence no later than April 4, 2022, and is to be completed no later than April 11, 2022. Approximately thirteen to sixteen (13–16) individuals have been identified for Tier 3 designation, including the following categories of personnel:
(a) TMC IT Administrators. IT personnel with administrative access to the email systems, file servers, and enterprise applications used by the U.S. Specialty Minerals Division. Their data is relevant to establishing system configurations, access controls, data retention policies, and the integrity of collected data. Collection from IT administrators will be limited in scope to system documentation, access logs, and relevant policy documents rather than their full mailboxes.
(b) Finance and Accounting Personnel. TMC finance and accounting staff involved in specialty minerals revenue reporting, cost accounting, and financial analysis for the U.S. Specialty Minerals Division. Their data is relevant to Subpoena category (vii) and to establishing the financial impact of the alleged conduct.
(c) Human Resources Personnel. TMC HR staff who maintain organizational charts, personnel files, employment records, and departure records for the U.S. Specialty Minerals Division. Their data is relevant to Subpoena category (viii) and is particularly important with respect to Gavin Holt's employment records, performance evaluations, separation agreement (if any), and the circumstances of his resignation on September 30, 2021.
(d) Margaret Caldwell, Board Chair. Ms. Caldwell's collection will be limited in scope to Board-level materials regarding the U.S. Specialty Minerals Division, including Board presentations, divisional performance updates, and strategic planning materials. Full mailbox collection is not anticipated unless preliminary review indicates broader relevance.
(e) Janet Moreau-Shaw, Audit Committee Chair. Ms. Moreau-Shaw's collection will be limited in scope to Audit Committee materials, including any audit reports, internal control assessments, or compliance-related presentations that reference the U.S. Specialty Minerals Division or the antitrust compliance program.
(f) Other Board Members. Additional Board members who received U.S. Specialty Minerals Division reports or who participated in Board or committee discussions regarding the Division's performance, competitive strategy, or compliance posture. The specific individuals will be identified through review of Board minutes and Board package distribution lists.
(g) Corporate Secretary. The TMC corporate secretary responsible for maintaining Board minutes, Board resolutions, committee charters, and corporate governance records. Collection will focus on Board and committee records relevant to the U.S. Specialty Minerals Division.
(h) Administrative Assistants to Tier 1 Custodians. Administrative assistants who managed calendars, travel arrangements, meeting logistics, and document filing for Tier 1 custodians. Of particular importance is Gavin Holt's former administrative assistant, who may have calendared meetings with competitor representatives, managed NASMC conference logistics, and maintained files that are no longer accessible through Mr. Holt's own TMC account. The identity of Mr. Holt's former assistant is to be confirmed with TMC HR.
E. Total Custodian Count
A total of thirty-four (34) custodians have been identified across all three priority tiers as of the date of this memorandum. The distribution is as follows:
It should be noted that the custodian list is subject to revision as the internal investigation progresses and additional relevant individuals are identified. In particular, the ongoing review of Gavin Holt's email archives may reveal additional correspondents or participants in relevant communications who should be added to the custodian list. Similarly, the DOJ may identify additional custodians through its own investigation or through information obtained from the cooperating witness entity, Cascade Chemical Supply Co. Any additions or modifications to the custodian list will be documented in a supplemental memorandum and communicated to Redstone promptly.
IV. DATA SOURCES
The following sections identify the categories of data sources from which ESI and hard-copy documents are to be collected. For each data source, the relevant custodians, location, and collection considerations are described.
A. Corporate Email Systems
TMC and TMC US utilize Cobalt Ridge Data Systems as part of a Ashgrove Software enterprise environment for corporate email. All corporate email for TMC and TMC US employees is hosted in Ashbury Holdings's cloud infrastructure and administered by TMC's centralized IT department in Toronto.
Active Mailboxes. Active mailboxes exist for all current-employee custodians across all three tiers. These mailboxes contain current and historical email, calendar entries, contacts, and tasks. TMC's email retention policy (last updated January 2020) provides for a default retention period of seven (7) years for all corporate email; however, the litigation hold issued on March 1, 2022 suspends any automatic deletion that might otherwise occur.
Archived and Journaled Mailboxes. For departed employees, TMC's IT department maintains archived mailboxes in Ashgrove Software for a period of one (1) year following the employee's departure, after which the mailbox data is migrated to long-term archive storage. It is critical that TMC IT confirm that Gavin Holt's mailbox was preserved in its entirety upon his departure on September 30, 2021. The litigation hold was not issued until March 1, 2022 — a gap of approximately five months — and it must be determined whether any automated deletion or archival processes affected the completeness of Mr. Holt's mailbox data during that interim period. TMC IT is to provide a written confirmation regarding the status of Mr. Holt's mailbox, including any deletions or modifications that may have occurred after his departure.
In addition, TMC maintains a journaling system that captures a copy of all inbound and outbound email messages for compliance and archival purposes. The journal archives serve as a secondary source for validation of mailbox-level collections and may capture messages that were deleted by users prior to the litigation hold.
Relevant Email Domains. The following email domains are relevant to the collection:
•  @torchlightmining.com — the primary corporate email domain used by TMC employees globally, including Canadian headquarters and international operations.
•  @tmc-us.com — the email domain used by TMC US employees in the United States, including U.S. Specialty Minerals Division personnel based in Reno, Nevada and other U.S. locations.
Collection Period. Email is to be collected for the period from January 1, 2015 through the present (i.e., through the date of collection). This collection period extends two years prior to the commencement of the alleged conspiracy period (January 2017) to capture contextual communications that may shed light on the formation of the alleged conspiracy, pre-existing business relationships, and baseline pricing practices.
B. Shared Network Drives and File Servers
TMC and TMC US maintain shared network drives and file servers for collaborative document storage. The following shared drive locations have been identified as relevant to the collection:
(i) U.S. Specialty Minerals Division Shared Drive. The primary shared drive for the Division is hosted on TMC US file servers located at the Reno, Nevada office, 8750 West Sahara Avenue, Suite 210, Reno, NV 89117. This drive contains divisional documents including sales reports, pricing materials, customer correspondence, and operational data.
(ii) Sales Department Shared Folders. Subdirectories within the Division's shared drive dedicated to the Sales function, including folders organized by region, customer, product category, and time period.
(iii) Pricing Analytics Team Shared Folders. Subdirectories maintained by Sandra Chu's Pricing Analytics team, containing pricing models, price lists, pricing adjustment records, competitive pricing analyses, and related analytical work product.
(iv) Executive Shared Folders. Shared folders accessible to the CEO, General Counsel, and CFO, containing executive-level documents such as Board presentations, divisional strategy documents, financial summaries, and corporate governance materials.
(v) Compliance Department Shared Folders. Shared folders maintained by the Compliance function, containing the antitrust compliance policy, training materials, training attendance records, compliance certifications, and any reports of compliance concerns or investigations.
C. VaultChat Encrypted Messaging Archives
VaultChat is an end-to-end encrypted messaging application that has been specifically identified in DOJ materials as a platform allegedly used for competitor communications during the conspiracy period. The Subpoena expressly calls for the production of VaultChat communications in document category (x). This data source presents unique technical and legal challenges, as described in greater detail in Section XI.B below.
TMC's IT department is to be queried regarding the following:
(i) Whether VaultChat was installed on any TMC-issued mobile devices, laptops, or other corporate-controlled equipment;
(ii) Whether VaultChat data was ever backed up, captured, or logged by TMC's mobile device management ("MDM") system (currently Northgate Systems);
(iii) Whether VaultChat messages are stored locally on the device, in VaultChat's cloud infrastructure, or both; and
(iv) Whether any TMC IT policies prohibited or restricted the installation of unauthorized messaging applications on corporate devices.
If VaultChat data resides on TMC-controlled devices or servers, Redstone is to perform forensic imaging of those devices and systems and attempt to extract all recoverable VaultChat data, including message content, metadata, attachments, and contact lists. If VaultChat data resides only on personal devices of individual custodians, collection will depend on custodian cooperation and, in the case of Gavin Holt, coordination with his personal counsel at Briarcliff Law Group PLLC.
VaultChat's encryption architecture may present significant technical challenges to data extraction, and Redstone is directed to assess the feasibility of decryption and extraction as a priority matter. A supplemental technical memorandum from Redstone regarding VaultChat data recovery options is requested by March 25, 2022.
D. Personal Devices (Mobile Phones, Tablets, Personal Laptops)
TMC maintains a Bring Your Own Device ("BYOD") policy that permits employees to use personal mobile phones and tablets for business communications, subject to enrollment in the corporate MDM system. TMC IT is to be queried regarding which custodians utilized personal devices for business communications and whether the MDM system captured or has access to any business-related data on those personal devices.
For current employees who used personal devices for business communications and whose personal devices contain potentially responsive data (including VaultChat messages, text messages, or business email), TMC is to request voluntary production of those devices or, alternatively, consent to forensic imaging of business-related data partitions by Redstone. The Firm will prepare consent forms for this purpose, and any forensic imaging of personal devices will be conducted using targeted extraction protocols designed to minimize intrusion into personal data unrelated to TMC business.
For Gavin Holt, personal devices are entirely outside TMC's control. As noted above, any request for personal device data from Mr. Holt must be coordinated through his personal counsel at Briarcliff Law Group PLLC and is subject to Mr. Holt's constitutional rights and the terms of his separate representation. Calderwood & Harkness will address this matter through a separate communication to Patrick Dunleavy.
E. Cloud Storage and Collaboration Platforms
TMC's Ashgrove Software environment includes Westvale Services Inc. and Larkspur Health IT, which are used by employees for cloud-based document storage, sharing, and collaboration.
Westvale Services Inc.. TMC maintains multiple Aldermere Systems sites, including team sites for the U.S. Specialty Minerals Division, the Legal department, the Finance department, and the Compliance function. Relevant Aldermere Systems sites and document libraries are to be identified by TMC IT and collected by Redstone.
Larkspur Health IT. Each TMC employee with a Ashgrove Software license has an associated Larkspur Health IT account used for individual cloud file storage. Cobalt Ridge Systems data for all 34 custodians is to be collected.
TMC IT is also to be queried regarding any other cloud-based document management or collaboration tools used by the U.S. Specialty Minerals Division, including but not limited to third-party file-sharing services (e.g., Larkspur Technologies, box, Hollowell Health IT), project management platforms (e.g., Sterling Reach Services Inc., Aldermere Solutions), or collaboration tools (e.g., Meridian Solutions, Northgate Data Systems). Any such platforms that contain potentially responsive data are to be included in the collection scope.
F. Enterprise Systems and Databases
TMC utilizes several enterprise systems and databases that contain structured data responsive to the Subpoena's document categories. The following systems have been identified:
(i) Enterprise Resource Planning ("ERP") System. TMC's ERP system (specific platform to be confirmed with TMC IT — believed to be Harborline Software) contains pricing data, customer master data, transaction records, sales order histories, and bid and proposal records. Data from this system is directly responsive to Subpoena categories (i), (v), (vi), and (vii).
(ii) Customer Relationship Management ("CRM") System. TMC's CRM system (specific platform to be confirmed — believed to be Pinnacle Health IT) contains customer contact information, sales pipeline data, opportunity tracking, account assignments, and bid history. This system is directly responsive to Subpoena categories (ii), (iv), and (v).
(iii) Pricing Databases and Models. The Pricing Analytics team, under Sandra Chu's direction, maintains dedicated pricing databases and spreadsheet-based pricing models that track published price lists, historical pricing by product and customer, price-change histories, and competitive pricing benchmarks. These materials are directly responsive to Subpoena category (vi).
(iv) Financial Reporting Systems. TMC's financial consolidation and reporting systems contain revenue data, cost data, margin analyses, and budget-to-actual comparisons for the U.S. Specialty Minerals Division. This data is responsive to Subpoena category (vii).
G. Hard-Copy Documents
While the vast majority of TMC's business records are maintained electronically, certain hard-copy documents have been identified as potentially responsive and must be collected through physical inspection. The following hard-copy sources have been identified:
(i) Gavin Holt's Former Office. TMC Facilities is to be queried regarding whether the contents of Mr. Holt's office at the Reno, Nevada location were preserved after his departure on September 30, 2021, or whether the office was cleared and its contents discarded. Any remaining physical files, notebooks, handwritten notes, business cards, or other materials are to be collected and preserved.
(ii) Sandra Chu's Office Files. Physical files maintained by Ms. Chu, including printed pricing reports, annotated pricing models, and any handwritten notes or correspondence.
(iii) Thomas Eriksen's Office Files. Physical files maintained by Mr. Eriksen, including NASMC-related materials, printed customer correspondence, and any handwritten notes from meetings with competitor representatives.
(iv) General Counsel's Files. Physical files maintained by the Legal department relating to the antitrust compliance program, including original policy documents, signed compliance certifications, and any records of compliance investigations or concerns.
(v) NASMC Conference Materials. Physical materials from NASMC conferences attended by TMC personnel, including printed agendas, attendee lists, presentation handouts, business cards collected at conferences, and handwritten notes taken during or after conference sessions and side meetings.
(vi) Board and Committee Materials. To the extent that Board and committee materials are not fully digitized, physical copies of Board packages, committee reports, and meeting minutes relevant to the U.S. Specialty Minerals Division are to be collected.
H. Backup Tapes and Disaster Recovery Systems
TMC IT is to be queried regarding the existence and availability of backup tapes or disaster recovery archives that may contain historical email data, file server data, or database records from the collection period (January 1, 2015 through present). The following specific inquiries are to be made:
(i) What backup tape rotation and retention schedule does TMC maintain?
(ii) Are there backup tapes that cover the alleged conspiracy period (January 2017 – August 2021) that have not been overwritten?
(iii) Do any backup tapes contain email or file data for custodians (particularly Gavin Holt) whose active archives may be incomplete due to the gap between departure and litigation hold?
(iv) What is the estimated time and cost for restoring backup tapes and extracting data in a forensically sound manner?
If backup tape restoration is necessary to ensure completeness of the collection — particularly with respect to Gavin Holt's data — Redstone is to coordinate with TMC IT to restore tapes using forensically sound methods and extract all relevant data. Priority is to be given to tapes covering the conspiracy period (January 2017 – August 2021) for Tier 1 custodians.
I. Third-Party Data Sources
In addition to TMC-controlled data sources, the following third-party data sources have been identified as relevant:
(i) NASMC Records. NASMC membership records, conference registration records, committee participation records, and meeting minutes for TMC employees are to be requested from NASMC by Calderwood & Harkness. A formal request letter will be prepared and transmitted to NASMC's general counsel or designated representative. These records are relevant to identifying which TMC employees attended NASMC events during the conspiracy period, which committees they served on, and which competitor representatives were in attendance at the same events.
(ii) TMC Travel and Expense Records. TMC's corporate travel management system (specific platform to be confirmed with TMC IT — believed to be Harborview Solutions) contains travel booking records, expense reports, and reimbursement records for TMC employees. These records are relevant to identifying travel to NASMC conferences held in Arlington, Virginia; Scottsdale, Arizona; Orlando, Florida; Nashville, Tennessee; and other locations during the conspiracy period. While these records are technically TMC-controlled, they are identified here as a distinct data source because they require targeted extraction from the corporate travel management system rather than collection from individual custodian devices or mailboxes.
V. FORENSIC COLLECTION METHODOLOGY
A. General Principles
All forensic collections are to be performed by Redstone Digital Forensics Inc. personnel under the direction and supervision of Neil Ashworth, Project Director. No TMC employees are to perform any collection activities without Redstone oversight, except for the structured database exports described in Section V.F below, which will be performed by TMC IT personnel with Redstone oversight and validation.
The following general principles govern all collection activities:
(i) Forensic Soundness. All collections must be forensically sound, meaning that they must maintain bit-for-bit integrity of the source data, preserve all metadata associated with the collected files and communications, and produce a verifiable, authenticated copy of the source data that can withstand scrutiny in judicial proceedings.
(ii) Metadata Preservation. All metadata associated with collected documents and ESI must be preserved throughout the collection process. Relevant metadata fields include, without limitation: date created, date modified, date last accessed, author/sender, recipients, file path, file name, file size, file type, email subject, email date/time sent, email date/time received, and custodian association.
(iii) Chain of Custody. A documented chain of custody must be maintained for all collected data from the point of initial collection through all subsequent stages of the data lifecycle, including transfer, processing, hosting, review, and production. Chain of custody documentation must be sufficient to demonstrate the integrity and authenticity of the collected data in any subsequent legal proceeding.
(iv) Documentation. All collection activities are to be documented in detailed collection logs, which must include the following information for each collection event: date and time of collection (start and end); identity of the collecting technician (by name and Redstone employee ID); source device, system, or data repository; collection method and tools used; collection scope (e.g., full mailbox, date-range-limited, specific directories); hash values (both MD5 and SHA-1) computed for the collected data at the time of collection; and any anomalies, errors, or exceptions encountered during the collection.
B. Email Collection
For email data hosted in TMC's Ashgrove Software / Drayton Solutions environment, collections are to be performed using compliant e-discovery collection tools. The preferred approach is to utilize Westmark Technologies (formerly Ashgrove Software Security & Compliance Center) content search and eDiscovery features, supplemented by third-party e-discovery collection tools (e.g., Ostrander Health IT, Severin Software, or equivalent) as needed to ensure comprehensive metadata capture and format compatibility.
Mailbox data is to be exported in PST format (for Ashbury Holdings environments) or EML format (for individual message-level export), with full metadata preserved. The choice of export format will be determined by Redstone based on the specific requirements of the downstream processing and hosting platform, with a preference for the format that best preserves metadata integrity.
For Tier 1 custodians, entire mailboxes are to be collected without date-range limitation, including all folders (Inbox, Sent Items, Deleted Items, Drafts, Junk Email, Archive, and any user-created folders), calendar entries, contacts, and tasks. For Tier 2 and Tier 3 custodians, collections are to be date-range-limited to January 1, 2015 through the date of collection, consistent with the collection period established in Section IV.A above.
If any on-premises Exchange server archives exist (e.g., legacy mail stores that were not migrated to Ashgrove Software), Redstone is to perform direct forensic extraction from those servers using appropriate tools and protocols.
Journal archives and litigation-hold captures maintained by TMC IT are to be collected separately as a validation data set. These archives will be compared against custodian-level mailbox collections to identify any gaps or discrepancies.
C. File Server / Shared Drive Collection
Forensic imaging of relevant shared drive directories is to be performed using industry-standard forensic imaging tools, including Stonefield Software, Harborview Services Inc. (Forensic Toolkit), or equivalent tools approved by Redstone's Project Director.
Rather than imaging entire file servers (which would be disproportionate to the scope of responsive data), Redstone will employ directory-level targeting to collect data from the specific shared drive locations identified in Section IV.B above, including the U.S. Specialty Minerals Division shared drive, Sales department shared folders, Pricing Analytics team shared folders, Executive shared folders, and Compliance department shared folders.
Full file-system metadata must be preserved during the imaging process, including file permissions, folder paths, timestamps (created, modified, accessed), and file ownership information. The forensic image of each targeted directory is to be verified against the source using hash value comparison.
D. Mobile Device Collection
For TMC-issued mobile devices (corporate smartphones, tablets, and laptops), forensic imaging is to be performed using Drayton Technologies (Universal Forensic Extraction Device), Harborview Data Systems, or equivalent mobile forensic tools, depending on the device platform (iOS or Android) and the specific data extraction requirements.
The following data categories are to be captured from mobile devices:
•  All messaging applications, including but not limited to VaultChat, SMS/Westmark Software, Meridian Services Inc., Signal, Kestrel Data Systems, and any other messaging platform installed on the device;
•  Call logs (inbound, outbound, and missed calls);
•  Contact lists;
•  Locally stored files, including downloaded documents, photos of documents, screenshots, and voice recordings;
•  Browser history and bookmarks (to the extent relevant); and
•  Application installation history (to identify the presence of VaultChat or other relevant applications).
For personal devices where the custodian has provided written consent to forensic imaging, Redstone is to perform a targeted extraction of business-related data only. Privacy protocols will be implemented to minimize the capture of personal data unrelated to TMC business, including the use of keyword and application-level filters during the extraction process. Consent forms and privacy protocols will be prepared by Calderwood & Harkness and provided to Redstone in advance of any personal device collection.
E. Cloud Storage Collection
Westvale Services Inc. and Larkspur Health IT data is to be collected via Ashgrove Software APIs or through third-party e-discovery tools that integrate with Ashgrove Software and preserve all associated metadata, including document versioning history, sharing permissions, and access logs.
Cloud storage data is to be collected at the user level for all 34 custodians. For Aldermere Systems team sites, collections will be organized by site and document library, with custodian attribution based on document author, modifier, or uploader metadata.
F. Database Exports
Structured data from TMC's ERP, CRM, pricing databases, and financial reporting systems is to be exported in structured format (e.g., CSV, delimited text files, native database dumps, or XML exports) by TMC IT personnel with Redstone oversight and validation. Direct forensic imaging of enterprise databases is generally neither practical nor necessary; structured exports are the appropriate collection method for this data source category.
The specific data fields, tables, and queries for each database export are to be defined by Calderwood & Harkness (Aaron Liu and Monica Reyes) in consultation with Redstone, based on the Subpoena categories. At a minimum, the following data sets are to be exported:
(i) Pricing Tables. All pricing tables, price lists (published and internal), price-change records, and pricing tier structures for feldspar, talc, and rare-earth concentrates, covering the period from January 1, 2015 through present.
(ii) Customer Assignment Records. All customer-to-account-manager assignment records, territory definitions, and customer segmentation data for the products at issue.
(iii) Bid and Proposal Records. All records of bids, proposals, RFQ responses, and competitive tenders submitted for the products at issue, including bid amounts, competitors identified, win/loss outcomes, and related correspondence references.
(iv) Transaction History. All sales transaction records (orders, invoices, shipments) for the products at issue, covering the period from January 1, 2015 through present.
(v) Pricing Analytics Databases. Full export of all pricing models, published price lists, price-change histories, competitive pricing benchmarks, and margin analyses maintained by the Pricing Analytics team under Sandra Chu's direction.
All database exports are to be accompanied by data dictionaries and schema documentation sufficient to allow the review team and, ultimately, the DOJ to understand the structure and content of the exported data.
G. Hard-Copy Collection
Physical inspection and collection of identified hard-copy files is to be conducted by Redstone personnel at TMC's Reno, Nevada office and, if applicable, other TMC locations where hard-copy materials are maintained. The scope of hard-copy collection is as described in Section IV.G above.
All collected hard-copy documents are to be scanned at a minimum resolution of 300 DPI and OCR-processed (optical character recognition) for full-text searchability. Scanned documents will be incorporated into the review platform alongside electronically collected data.
Chain of custody is to be maintained for all physical materials from the point of collection through scanning, and original hard-copy documents are to be stored in secure, labeled containers at Redstone's McLean, Virginia facility or returned to TMC's legal department for secure storage, as directed by Calderwood & Harkness.
H. Backup Tape Restoration
If the inquiries described in Section IV.H determine that backup tape restoration is necessary to ensure the completeness of collected data — particularly with respect to Gavin Holt's pre-departure data and data from the conspiracy period — Redstone is to coordinate with TMC IT to restore the identified tapes in a forensically sound manner.
Backup tape restoration is to be prioritized as follows:
(i) First priority: Tapes covering the conspiracy period (January 2017 – August 2021) that may contain email or file data for Tier 1 custodians, with particular emphasis on Gavin Holt;
(ii) Second priority: Tapes covering the broader collection period (January 2015 – present) for Tier 1 custodians; and
(iii) Third priority: Tapes covering the conspiracy period for Tier 2 custodians, as needed.
Restored data is to be extracted, hash-verified, and incorporated into the standard collection workflow for processing and hosting.
VI. DATA PROCESSING AND HOSTING
All data collected by Redstone pursuant to this protocol is to be transported to Redstone's secure processing facility located at 7925 Jones Branch Drive, Suite 600, McLean, Virginia 22102. Transport of data is to be accomplished through encrypted electronic transfer (for data originating from cloud-based sources) or through physically secured, encrypted storage media transported via bonded courier (for data collected from on-premises sources and devices). All transport methods must maintain chain of custody and ensure data integrity through hash value verification upon receipt.
Upon receipt at the processing facility, collected data is to be processed using industry-standard e-discovery processing tools (e.g., Brightmoor Health IT, Severin Software, Harborline Services Inc., or equivalent). Processing will include the following steps:
(i) Container Expansion. All container files (e.g., PST files, ZIP archives, RAR archives, MSG files) are to be expanded to extract individual documents and messages.
(ii) De-NISTing. System files and application files that are not user-generated content are to be identified and excluded using the National Institute of Standards and Technology ("NIST") National Software Reference Library ("NSRL") hash set. This step removes operating system files, application executables, and other non-substantive files from the review population.
(iii) Text and Metadata Extraction. Full text and all associated metadata are to be extracted from each document and communication for indexing and searchability within the review platform.
(iv) Hash Value Generation. MD5 and SHA-1 hash values are to be generated for each document and communication for deduplication, verification, and chain-of-custody purposes.
(v) De-duplication. De-duplication is to be performed at the custodian level (not globally). This approach preserves the ability to identify which custodians possessed copies of a given document, which is critical for assessing responsiveness, relevance, and privilege at the custodian level. A document that appears in the collections of multiple custodians will be reviewed once but tracked to all custodians who possessed it.
(vi) Exception Handling. Any processing exceptions (e.g., corrupted files, password-protected files, encrypted files, files in unsupported formats) are to be logged in an exception report and flagged for resolution in consultation with Calderwood & Harkness.
Processed data is to be hosted on Redstone's secure, cloud-based review platform, which provides the Calderwood & Harkness review team with secure, role-based access for document review, coding, privilege designation, and production preparation. The review platform must support advanced search functionality, including full-text search, metadata filtering, date-range filtering, custodian filtering, concept search, and technology-assisted review ("TAR") capabilities.
Search-term and date-range filters are to be developed and applied in consultation with the Calderwood & Harkness review team (Aaron Liu and Monica Reyes) to prioritize the review of potentially responsive documents. An initial set of search te