CALDERWOOD & HARKNESS LLP 555 California Street, 40th Floor San Francisco, California 94104
ELAINE FORSYTHE Partner Direct: (415) 773-6200 Facsimile: (415) 773-6201
Email: eforsythe@calderwoodharkness.com
April 4, 2022
VIA HAND DELIVERY AND SECURE ELECTRONIC FILE TRANSFER
Denise Kowalski, Esq. Trial Attorney Antitrust Division U.S. Department of Justice San Francisco Field Office 450 Golden Gate Avenue, Room 10-0101 San Francisco, CA 94102
Marcus Reeves, Esq. Senior Trial Attorney Antitrust Division U.S. Department of Justice San Francisco Field Office 450 Golden Gate Avenue, Room 10-0101 San Francisco, CA 94102
Re: In the Matter of Grand Jury Investigation No. GJ-22-0194 — Document Production on Behalf of Torchlight Mining Corp. (Subpoena No. GJ-22-0194-SD-003)
C&H Matter No.: 1039-00001
Dear Ms. Kowalski and Mr. Reeves:
We write on behalf of our client, Torchlight Mining Corp. ("TMC"), a corporation organized and existing under the Canada Business Corporations Act, with its registered office at 200 Bay Street, Suite 3400, Toronto, Ontario M5J 2J2, Canada, and its principal U.S. operations conducted through its wholly-owned subsidiary, Torchlight Mining (U.S.) Inc., located at 8750 West Sahara Avenue, Suite 210, Reno, Nevada 89117. Calderwood & Harkness LLP was engaged by TMC on February 18, 2022, to represent TMC in connection with the above-referenced matter.
This letter accompanies TMC's first rolling production of documents responsive to Grand Jury Subpoena Duces Tecum No. GJ-22-0194-SD-003 (the "Subpoena"), which was issued to TMC on February 14, 2022, in connection with Grand Jury Investigation No. GJ-22-0194, pending before the Grand Jury sitting in the United States District Court for the Northern District of California, San Francisco Division. As you are aware, the initial return date of the Subpoena was extended by agreement of the Antitrust Division, as reflected in our letter to you dated February 22, 2022, in which we requested a sixty (60) day extension to permit TMC adequate time to undertake a thorough and good-faith collection, review, and production of responsive materials. We appreciate the Division's accommodation in granting that extension and its continued willingness to work cooperatively with us on the production schedule.
I. Scope of Production
Today's production constitutes the first of what will be a series of rolling productions of documents responsive to the specifications set forth in the Subpoena. Additional rolling productions will follow on a schedule to be coordinated with the Division, as described further in Section VII below.
The documents included in this first production are responsive to the specifications of Subpoena No. GJ-22-0194-SD-003 and encompass the following general categories of materials:
(a) Communications of Identified Custodians. Email correspondence and instant messaging archives (including archives from TMC's enterprise Northgate Data Systems and Westmark Services Inc. messaging platforms) of identified custodians within TMC's U.S. Specialty Minerals Division relating to the pricing, marketing, sale, and distribution of high-purity feldspar, industrial talc, and rare-earth concentrates during the relevant time period specified in the Subpoena (January 1, 2017 through February 14, 2022).
(b) Internal Pricing Documents. Internal pricing memoranda, price lists, pricing analytics, pricing models, cost analyses, margin analyses, and related strategic planning documents from the U.S. Specialty Minerals Division pertaining to the pricing of the above-referenced product categories.
(c) Records Relating to the North American Specialty Minerals Council ("NASMC"). Documents relating to TMC's interactions with NASMC, including but not limited to conference attendance records, meeting agendas, meeting minutes, presentations delivered at or received from NASMC events, and related internal and external correspondence referencing NASMC activities.
(d) Customer Contract Files and Bid Documentation. Customer contract files, supply agreements, bid documentation, requests for proposal, responses to requests for proposal, and related commercial correspondence for customers purchasing high-purity feldspar, industrial talc, and/or rare-earth concentrates from TMC's U.S. Specialty Minerals Division during the relevant time period.
(e) Organizational and Personnel Records. Organizational charts, reporting structures, and personnel records for employees and officers of the U.S. Specialty Minerals Division during the relevant time period.
The documents in this production were collected from thirty-four (34) identified custodians as well as relevant non-custodial data sources, including shared network drives, Aldermere Systems repositories, the enterprise document management system (Tidewater Systems), and other enterprise systems maintained by TMC and Torchlight Mining (U.S.) Inc. The identification of custodians was based on a thorough analysis of the specifications set forth in the Subpoena, interviews of key personnel, and a review of TMC's organizational structure and document governance practices.
Data collection for this production was conducted by Redstone Digital Forensics Inc. ("Redstone"), a forensic data collection vendor retained by Calderwood & Harkness LLP for purposes of this engagement. Redstone performed all collections using forensically sound methodologies, including the use of write-blocking technology for on-site collections from endpoint devices, cryptographic hash verification of collected data, and chain-of-custody documentation consistent with industry best practices. Collection activities commenced on March 4, 2022, and the collections underlying this first production were completed on March 18, 2022.
II. Volume of Production
This first rolling production comprises approximately 42,000 documents, bearing Bates numbers TMC-GJ22-000001 through TMC-GJ22-042137. The total page count of the documents produced today is approximately 187,400 pages.
As noted above, today's production represents the first in a series of rolling productions. Based on the current status of TMC's document review, we anticipate that the total volume of documents ultimately produced across all rolling productions will encompass approximately 3.2 million or more pages. We will continue to update the Division as to the projected total volume as TMC's review progresses.
III. Production Format
The documents included in this production are being produced in the following formats, consistent with the production format specifications discussed between counsel during the telephonic meet-and-confer held on March 7, 2022, and as reflected in the parties' subsequent email correspondence:
(a) Image-Format Production. The majority of documents in this production are produced as single-page TIFF images with sequentially applied Bates numbering (prefix "TMC-GJ22-" followed by sequential six-digit numbering). Each TIFF image is accompanied by document-level load files in standard concordance/Relativity format, specifically:
(i) A concordance-compatible delimited data file (.dat) containing document-level metadata and coding information; and
(ii) An Opticon cross-reference file (.opt) mapping each Bates-numbered page to its corresponding TIFF image file.
Extracted text (for electronically stored information) or OCR-generated text (for scanned hard-copy documents) is provided in document-level text files accompanying each produced document.
(b) Native-Format Production. Certain file types for which conversion to image format would materially alter the document's content, functionality, or usability are produced in their native electronic format. These file types include, but are not limited to, Ashbury Holdings Excel spreadsheets (.xlsx, .xls, .csv), Ashbury Holdings Northgate Services Inc. presentations (.pptx, .ppt), and other structured data files. Each natively produced document is accompanied by a single-page TIFF placeholder slipsheet bearing the assigned Bates number for that document, and the native file is named with the corresponding Bates number for ease of cross-referencing.
(c) Metadata Fields. The following metadata fields are included in the load files accompanying this production:
• Bates Begin
• Bates End
• Custodian
• Date Sent / Date Created
• Date Received
• Author
• From
• To
• CC
• BCC
• Subject / Title
• File Extension
• File Path (original source path)
• MD5 Hash Value
(d) Email Family Integrity. Email families (i.e., parent emails and their associated child attachments) are produced together, and parent-child relationships are preserved and documented in the load file through the use of standard relational fields (Parent ID, Attachment Range).
This production is being delivered to the Division simultaneously via two methods: (1) secure electronic file transfer through Calderwood & Harkness's designated secure file transfer platform (access credentials have been provided to Ms. Kowalski and Mr. Reeves under separate cover); and (2) encrypted external media (USB hard drive), which is being delivered by hand to the Antitrust Division's San Francisco Field Office at 450 Golden Gate Avenue, Room 10-0101, concurrently with the delivery of this letter. The encryption passphrase for the external media will be communicated separately to Ms. Kowalski by telephone.
IV. Privilege Withholdings
In the course of its review, TMC has identified and withheld certain documents from this production on the grounds that such documents are protected by the attorney-client privilege and/or the work-product doctrine. These documents have been withheld in their entirety or, where appropriate, redacted to protect privileged content while producing non-privileged portions.
A privilege log (the "First Production Privilege Log"), dated April 4, 2022, is being produced concurrently with this letter and today's document production. The privilege log identifies each withheld document by: (i) date of the document or communication; (ii) author or sender; (iii) recipient(s) and, where applicable, persons copied; (iv) a general description of the subject matter of the document sufficient to assess the privilege claim without revealing privileged content; and (v) the specific privilege or protection asserted (attorney-client privilege, work-product doctrine, or both). The privilege log also identifies documents that have been produced in redacted form, along with the basis for each redaction.
The privilege review underlying today's production was conducted in accordance with Calderwood & Harkness's privilege review protocol, which utilizes a combination of technology-assisted review tools, targeted keyword searches for privilege-indicative terms, and manual attorney review of documents flagged for potential privilege. All privilege determinations were made or confirmed by attorneys at Calderwood & Harkness LLP.
TMC reserves all rights with respect to privileged and work-product-protected materials, including the right to assert privilege over any document that may have been inadvertently produced without a privilege designation. In this regard, we note that TMC intends to seek entry of a protective order pursuant to Federal Rule of Evidence 502(d) in connection with the grand jury proceedings, to ensure that any inadvertent production of privileged or work-product-protected materials does not constitute a waiver of applicable protections. As you are aware, the parties have discussed the framework for a clawback agreement, and we look forward to finalizing such an agreement in the near term. Pending entry of a Rule 502(d) order or execution of a written clawback agreement, TMC produces the documents accompanying this letter subject to a full reservation of rights regarding any inadvertent production of privileged or work-product-protected materials. In the event that any such inadvertent production is identified, TMC will promptly notify the Division and request the return or sequestration of the inadvertently produced materials.
TMC further reserves the right to supplement the privilege log as additional rolling productions are made and as additional documents are identified that are subject to withholding on privilege grounds.
V. Reservations and Limitations
TMC's production of documents in response to the Subpoena is made without waiver of any objections, whether previously asserted or not, to the scope, burden, breadth, temporal range, or relevance of the Subpoena or any of its specifications. TMC expressly preserves all such objections.
TMC continues to conduct its document collection, processing, and review, and additional responsive documents will be produced on a rolling basis as the review process progresses. Today's production should not be understood or construed as TMC's complete or final response to the Subpoena, and the absence of any particular category of documents from today's production does not indicate that responsive documents in such category do not exist or will not be produced in subsequent productions.
TMC expressly reserves the right to supplement, correct, or amend this production as the review process continues, including but not limited to the correction of any inadvertent errors in Bates numbering, metadata, or load file coding.
TMC's production of documents does not constitute, and should not be construed as, any admission or concession regarding the relevance, authenticity, admissibility, or evidentiary significance of any document produced, nor does it constitute any admission regarding the truth or accuracy of the contents of any such document.
TMC has undertaken reasonable and good-faith efforts to search for, identify, collect, review, and produce documents responsive to the Subpoena. TMC's continuing cooperation with the Division's investigation is voluntary and is being undertaken in good faith and in the spirit of cooperation with the Antitrust Division.
VI. Continuing Cooperation
TMC is committed to working collaboratively and cooperatively with the Antitrust Division in connection with its investigation. We appreciate the Division's professionalism and its willingness to engage in a constructive dialogue regarding the scope and logistics of TMC's document production obligations. TMC intends to continue cooperating with the Division's investigation, and we welcome the opportunity to discuss any questions or concerns the Division may have regarding the production, the format of the documents produced, or the substance of any documents included in today's production.
We are happy to arrange a meeting or telephone conference at the Division's convenience to walk through any aspects of this production or to address any questions regarding TMC's collection and review methodology.
VII. Proposed Schedule for Subsequent Productions
Calderwood & Harkness intends to continue producing documents on a rolling basis as TMC's review progresses. We currently anticipate that the second rolling production will be delivered within approximately four to six weeks of today's date, i.e., on or about May 16, 2022. We will keep the Division apprised of the status of our review and will promptly notify the Division in the event that circumstances arise that may affect the production schedule.
We propose that the parties schedule a brief telephonic conference in the coming weeks to discuss the anticipated schedule for subsequent rolling productions, any adjustments to the production format, and any other logistical matters related to TMC's ongoing document production.
VIII. Contact Information
Any questions or communications regarding this production, including questions about the production format, the privilege log, or the documents produced, should be directed to:
Elaine Forsythe (Responsible Partner) Calderwood & Harkness LLP 555 California Street, 40th Floor San Francisco, CA 94104 Direct: (415) 773-6200
Email: eforsythe@calderwoodharkness.com
Aaron Liu (Lead Associate) Calderwood & Harkness LLP 555 California Street, 40th Floor San Francisco, CA 94104 Direct: (415) 773-6247
Email: aliu@calderwoodharkness.com
We thank you for your attention to the foregoing and for the Division's continued courtesy and professionalism throughout this process. Please do not hesitate to contact us with any questions.
Very truly yours,
CALDERWOOD & HARKNESS LLP
By: ________
Elaine Forsythe Partner
555 California Street, 40th Floor San Francisco, CA 94104
Enclosures:
1. Document Production (TMC-GJ22-000001 through TMC-GJ22-042137) — via secure electronic file transfer and encrypted external media (delivered by hand)
2. Privilege Log — First Production, dated April 4, 2022
cc:
Priya Anand, General Counsel, Torchlight Mining Corp. (via email) Aaron Liu, Calderwood & Harkness LLP Monica Reyes, Calderwood & Harkness LLP