United States District Court, N.D. Texas, Dallas Division
MEMORANDUM OPINION AND ORDER ON MOTION TO
L. HORAN UNITED STATES MAGISTRATE JUDGE
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”).
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.
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.
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.
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.
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.
MTC, however, focuses on events that occurred prior to the
return of the indictment in this district. As explained in
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.,
Dkt. No. 57 at 3-4 (footnote omitted).
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 ...