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United States v. Sledziejowski

United States District Court, N.D. Texas, Dallas Division

May 18, 2018

UNITED STATES OF AMERICA,
v.
ROMAN SLEDZIEJOWSKI, Defendant.

          MEMORANDUM OPINION AND ORDER ON MOTION TO COMPEL

          DAVID L. HORAN UNITED STATES MAGISTRATE JUDGE

         As to emails of his that the government has obtained, some of which are protected by the attorney-client privilege, Defendant Roman Sledziejowski moves (1) to compel the government to disclose the methods and results of its taint process; (2) to prohibit the government from reviewing any additional potentially privileged materials during the pendency of this motion; and (3) to determine, at a hearing, the extent of the taint to the government's investigation and prosecution. See Dkt. No. 57 (the “MTC”).

         United States District Judge Jane J. Boyle referred the MTC to the undersigned United States magistrate judge for hearing, if necessary, and determination or recommendation under 28 U.S.C. § 636(b). See Dkt. No. 58.

         The government filed a court-ordered expedited response to Mr. Sledziejowski's second request. See Dkt. No. 60; see also Dkt. No. 59. The government also filed a comprehensive response to the MTC. See Dkt. No. 61. And Mr. Sledziejowski moves for leave to file a reply brief. See Dkt. No. 62.

         Neither side requests a hearing on the resolution of this motion - and, for the reasons explained below, the Court determines that one is not necessary. The hearing that Mr. Sledziejowski requests would only occur - if “necessary” - “after reviewing the full details of the Government's taint process.” Dkt. No. 57 at 1 n.1; see also Id. at 10.

         The Court GRANTS leave to file the reply and, for the reasons and to the extent set out below, GRANTS in part and DENIES in part the MTC.

         Applicable Background

         Through an indictment in this district returned in March of 2016, Mr. Sledziejowski is charged with three counts of securities fraud in violation of 15 U.S.C. § 78j(b) and 78ff and 17 C.F.R. § 240.10b-5, based on transactions that occurred in July of 2012. See generally Dkt. No. 1.

         The MTC, however, focuses on events that occurred prior to the return of the indictment in this district. As explained in the MTC

Mr. Sledziejowksi's business, TWS Financial LLC (“TWS”), and Mr. Sledziejowski each filed for bankruptcy in a federal bankruptcy proceeding in the Southern District of New York. As part of the bankruptcy proceeding, Mr. Sledziejowski's estate was engaged in an adversary proceeding with Apex Clearing Corp. (“Apex Adversary Proceeding”). (Declaration of Joseph Lawlor, dated April 27, 2018 (“Lawlor Decl.”), ¶ 4) Pursuant to a protective order issued in the Apex Adversary Proceeding on August 13, 2014, Mr. Sledziejowski was required to provide Apex with his entire personal email account, subject to a claw-back for emails that were (i) subject to the attorney client privilege (for which a list of 33 attorneys and firms were provided to Apex) and (ii) beyond the scope of the dispute between Apex and Mr. Sledziejowski. (Id., ¶ 5)
On August 25, 2014, less than two weeks after Apex gained access to Mr. Sledziejowski's entire email account, the Government issued a subpoena to Apex seeking Mr. Sledziejowski's entire personal email account. (Id., ¶ 6) The Government's request encompassed emails that were privileged and emails that were unrelated to the Apex Adversary Proceeding. On September 23, 2014, Apex provided the Government with the entire contents of Mr. Sledziejowski's personal email account. (Id., ¶ 7) The email account covers the time period of January 2008 through August 2014. (Id., ¶ 8).

Dkt. No. 57 at 3-4 (footnote omitted).

         But the government did reach out to Mr. Sledziejowski's then-counsel, Lawrence A. Garvey, prior to gaining access to the email account to discuss a review of the emails for those that implicate the attorney-client privilege. Mr. Garvey wrote to Assistant United States Attorney J. Nicholas Bunch on September 15, 2014:

Thank you for taking the time to speak to [me] last week concerning the Apex/ Sledziejowski subpoena. Having spoken to my client, we believe the process that you described where an [AUSA] and agent review the documents for privilege is acceptable. Could you memorialize that process in an email to me? and should I provide you a ...

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