REDACTED DOCUMENT- Exhibits of Matthew Beville Declaration to[124] Order on Sealed Motion for Leave to File Document Under Seal,,, Exhibit A (Redacted) by BAM MANAGEMENT US HOLDINGS INC., BAM TRADING SERVICES INC.. (Attachments: # (1) Exhibit B (Redacted), # (2) Exhibit C (Redacted), # (3) Exhibit D (Redacted), # (4) Exhibit E (Redacted), # (5) Exhibit F (Redacted))(McLucas, William)
Page 1 Declaration of Matthew
Beville Ex. FPage 2 Case 1:23-cv-01599-ABJ-ZMF Document 140-95-10 Filed 10/03/08/14/23 Page 1 of 8Page 3 Case 1:23-cv-01599-ABJ-ZMF Document 140-95-10 Filed 10/03/08/14/23 Page 2 of
From:
Sent:
To:
Cc:
Subject:
Martens, Matthew T.
Monday, August 14, 2023 8:14 AM
Murphy, J. Emmett; Beville, Matthew; Canellos, George; McLucas, William; Laroche, Matthew; Adler,
Jeremy
Smith, Tiffany; Scarlato, Matthew; Farer, Jennifer; Tenreiro, Jorge
[EXT] RE: SEC v. Binance Holdings Ltd., et al. (1:23-cv-01599)
Dear Emmett:
We propose August 24 for Mr. Kellogg’s deposition and confirm August 31 for Mr. Zhang’s deposition.
We do not agree to depositions of Brian Shroder or Jasmine Lee nor do we
understand why you intend to take them consistent with the purpose of the Consent Order and given the other
witnesses we’ve offered to make available.
We disagree with your assertion that we “have now for the first time expressed a willingness to run targeted email
searches.” We previously produced email communications based on a targeted request. Moreover, we have asked you
on several occasions to propose more limited requests, but you have declined to do so. Regardless, we do not think it
would be useful for us to propose search parameters. We do not understand (and you have not explained) why you
need communications to assess the custody and security of customer assets, which leaves us guessing as to what subset
of communications about customer assets would satisfy your requests.
We assume we are at an impasse on the depositions of Mr. Shroder and Ms. Lee and the production of
communications. Please let us know by 5pm today whether you withdraw your requests; otherwise we will move for a
protective order with the Court.
Finally, we agree to accept service on behalf of the individuals identified below.
Best regards,
--Matt
From: Murphy, J. Emmett
Sent: Thursday, August 10, 2023 7:43 PM
To: Martens, Matthew T. ; Beville, Matthew ; gcanellos@milbank.com; McLucas, William ;
mlaroche@milbank.com; Adler, Jeremy
Cc: Smith, Tiffany ; Scarlato, Matthew ; Farer, Jennifer ; Tenreiro, Jorge
Subject: RE: SEC v. Binance Holdings Ltd., et al. (1:23-cv-01599)
EXTERNAL SENDER
1Page 4 Case 1:23-cv-01599-ABJ-ZMF Document 140-95-10 Filed 10/03/08/14/23 Page 3 of Matt:
It is clear from your responses that we have a fundamental disagreement as to the scope of the Consent Order
and BAM’s compliance with it. These issues, ranging from the scope, substance, timing, and format of BAM’s
document productions and interrogatory responses, and now extending to depositions, have been set out
extensively in prior correspondence and our calls. We will be following up shortly regarding some of the
broader set of issues and outstanding items, which will likely need to be presented to the Court for resolution
given where we are.
In the interest of moving at least some discovery forward, while we disagree with your objection to the number
of depositions and continue to reserve all rights, we will amend our current list to the following BAM
deponents, subject to further modification based on an order from the Court:
1.
2.
3.
4.
5.
6.
Rule 30(b)(6) of BAM Trading Inc. (notice with topics will follow)
Erik Kellogg
Brian Shroder
Jasmine Lee
Tao Zhang
Based on the dates you provided today, we will plan to depose Zhang on August 31. Regarding Erik Kellogg,
whom we noticed for August 29, we have confirmed that Michael Fernandez of FGMK LLP is available to be
deposed remotely on August 23, so we ask that you provide alternative dates for Mr. Kellogg for August 24 or
25 or another day during the week of the 28th, if he is unavailable on the 29th. Please also provide dates for
the other individuals, and we can negotiate dates for the 30(b)(6) deposition once you have reviewed the
forthcoming notice. We also ask, once again, that you confirm whether you are authorized to and agree to
accept service for the individuals listed above.
We will seek further relief from the Court regarding the number of depositions as necessary. Given BAM’s
position that we are only entitled to 10 depositions under the Consent Order and our discussions to date, we
understand that you oppose such a request, but let us know if you would like to discuss further.
Finally, as to BAM’s position regarding the scope of communications BAM is willing to produce, to date you
have failed to elaborate on any purported burden, and as you acknowledged we have already narrowed the
scope of our requests for communications. You have now for the first time expressed a willingness to run
targeted email searches. As we stated, BAM has access to the data and custodians and is in the best position to
identify search terms (and to determine whether email is in fact the most appropriate source of relevant
communications). If BAM would like to propose search parameters to mitigate its general objections and
refusal to produce communications to date, we will consider them. But such proposal must be provided no later
than tomorrow COB. We are not willing to have extended negotiations further delay presenting the issue to the
Court.
Finally, given the numerous unresolved discovery issues, we reserve our right to reopen any deposition based
on additional discovery received.
Regards,
Emmett
From: Martens, Matthew T.
Sent: Thursday, August 10, 2023 11:00 AM
2Page 5 Case 1:23-cv-01599-ABJ-ZMF Document 140-95-10 Filed 10/03/08/14/23 Page 4 of To: Murphy, J. Emmett ; Beville, Matthew ;
gcanellos@milbank.com; McLucas, William ; mlaroche@milbank.com; Adler,
Jeremy
Cc: Smith, Tiffany ; Scarlato, Matthew ; Farer, Jennifer ; Tenreiro, Jorge
Subject: RE: SEC v. Binance Holdings Ltd., et al. (1:23-cv-01599)
CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you
recognize the sender and know the content is safe.
Dear Emmett:
As an initial matter, we take issue with your suggestion that we have “unreasonably limited” discovery to date. You
conducted a multi-year investigation and uncovered no evidence of misappropriation of client assets. Nevertheless,
during this litigation, BAM provided a sworn accounting, produced 194 documents (totaling 4,481 pages), and offered to
make four witnesses available for deposition. This is more than sufficient for what the Consent Order calls the “limited”
purposes of this expedited discovery. See Consent Order at 9 (authorizing “limited expedited discovery”).
As for depositions, the Consent Order expressly provides that depositions are governed by FRCP 30(a), which includes a
10 deposition limit. See Consent Order at 9 (“Pursuant to Rule 30(a) . . . , the SEC may take depositions”). While the
Order states that these depositions do not count against the limit that will apply to merits discovery, the expedited
discovery permitted by the Consent Order is itself subject to Rule 30(a)’s 10 deposition limit. Thus, your request for depositions of BAM employees, not to mention your deposition of the auditor, is inappropriate. Your suggestion that I
provided no basis for BAM’s objections to the additional depositions is incorrect. I explained in my prior email that your
request also violates FRCP 26(b)(1). BAM is willing to make available a reasonable number of deponents, and in that
regard has agreed to make Erik Kellogg, Sara Sisenwein, Tao Zhang,
available for deposition.
We expect to provide proposed deposition dates shortly for the witnesses.
Finally, as for your request for communications, we have repeatedly stated that we believe a communications search in
the context of expedited discovery is inappropriate and unnecessary for your purposes. And the proposal in your August
2 email to “limit” your communications requests to “all” communications that meet broadly defined criteria for custodians is unreasonably burdensome relative to the benefit, FRCP 26(b)(1), much less to do so by August 11. We fail
to understand how this burden can be justified, particularly given your years-long investigation and now that BAM has
provided a sworn accounting. Again, if you would like to request some targeted email searches, we are amenable to
such a request. But what you have proposed to date is unreasonable.
Best regards,
--Matt
From: Murphy, J. Emmett
Sent: Wednesday, August 9, 2023 1:52 PM
To: Martens, Matthew T. ; Beville, Matthew ; gcanellos@milbank.com; McLucas, William ;
mlaroche@milbank.com; Adler, Jeremy
Cc: Smith, Tiffany ; Scarlato, Matthew ; Farer, Jennifer ; Tenreiro, Jorge
Subject: RE: SEC v. Binance Holdings Ltd., et al. (1:23-cv-01599)
EXTERNAL SENDER
3Page 6Page 7 Case 1:23-cv-01599-ABJ-ZMF Document 140-95-10 Filed 10/03/08/14/23 Page 6 of such responsive communications. We read your responses to date as a refusal to produce any relevant
communications for these witnesses, and we reserve our right to seek relief on this issue from the Court.
Please confirm or provide alternative dates for Erik Kellogg, Sara Sisenwein, Tao Zhang,
by noon tomorrow and provide the basis for your objection for each of the other witnesses by COB
tomorrow, so we can take any outstanding disputes to the Court. It seems the issues are well defined enough for
you to respond promptly in writing, but if you feel a call would be productive we are available at 5:30 this
evening.
Regards,
Emmett
From: Martens, Matthew T.
Sent: Tuesday, August 8, 2023 5:21 PM
To: Beville, Matthew ; gcanellos@milbank.com; McLucas, William ; mlaroche@milbank.com; Adler, Jeremy ;
Murphy, J. Emmett
Cc: Smith, Tiffany ; Scarlato, Matthew ; Farer, Jennifer ; Tenreiro, Jorge
Subject: RE: SEC v. Binance Holdings Ltd., et al. (1:23-cv-01599)
CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you
recognize the sender and know the content is safe.
Dear Emmett:
As we have previously advised, we are prepared to make Erik Kellogg, Sara Sisenwein, Tao Zhang,
available for deposition and will work with you to identify acceptable dates for those depositions to be conducted later
this month. As for your request to depose all seven shard-holders, we believe that this is improper under the Consent
Order. During the hearings and mediation over the shards held overseas, it was agreed that BAM would domesticate all
seven shards such that they are in the possession of individuals in the United States and thus subject to the jurisdiction
of the Court and the Court’s order precluding improper transfers of assets. Order at 1-2. BAM has complied with that
directive, and the SEC has identified no basis to now depose each of those domestic custodians. The request for
depositions of all seven domestic shard-holders is not “proportional to the needs of the case” and “the burden and
expense of the proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1). That said, as an accommodation
we are willing to make one domestic shard-holder of your choice available for deposition without prejudice to your right
to seek depositions of other shard-holders if you can demonstrate good cause. Please advise which of the seven your
prefer. Finally, with regard to your request for “all” communications, we have set forth our objections to that unduly
broad request in our response to your document requests. You have not proposed a narrowing in response. We are, of
course, willing to consider more reasonable proposals.
Best regards,
--Matt
From: Murphy, J. Emmett
Sent: Tuesday, August 8, 2023 1:45 PM
To: McLucas, William ; Smith, Tiffany ; Beville,
Matthew ; gcanellos@milbank.com; mlaroche@milbank.com;
JDaSilva@milbank.com
5Page 8 Case 1:23-cv-01599-ABJ-ZMF Document 140-95-10 Filed 10/03/08/14/23 Page 7 of Cc: Scarlato, Matthew ; Farer, Jennifer ; Tenreiro, Jorge
Subject: RE: SEC v. Binance Holdings Ltd., et al. (1:23-cv-01599)
EXTERNAL SENDER
Counsel:
We write to follow up on the deposition notices sent on August 2 and related request for production of the deponents’
communications. We understood that you were going to consider Friday’s discussion regarding the depositions and get
back to us with the deponents you would agree to schedule. Please let us know as soon as possible -- and in any event
no later than today -- your position on the (1) deponents you agree to schedule and their availability (including any that
can be scheduled for next week); (2) basis for not agreeing to schedule the additional individuals we noticed, which
should be specific to each individual noticed and, as discussed, not simply based on the number of depositions noticed;
and (3) the production of communications for these noticed deponents, which we asked for on a rolling basis to be
completed by August 11. Particularly given the approaching discovery deadline, we would like to reach an agreement on
these issues to the extent possible, or we will need to consider whether to bring the issue before the Court.
Emmett
From: Farer, Jennifer
Sent: Friday, August 4, 2023 4:42 PM
To: Adler, Jeremy ; Scarlato, Matthew
Cc: McLucas, William ; Smith, Tiffany ; Beville,
Matthew ; gcanellos@milbank.com; mlaroche@milbank.com; DaSilva, Joe
Subject: RE: SEC v. Binance Holdings Ltd., et al. (1:23-cv-01599)
Jeremy,
We can do 5:30 today. Let us know if that works for you. If so, please send a dial-in.
Thanks.
Jennifer L. Farer
U.S. Securities and Exchange Commission
100 F Street N.E. | Washington, D.C. From: Adler, Jeremy
Sent: Friday, August 4, 2023 4:17 PM
To: Farer, Jennifer ; Scarlato, Matthew
Cc: McLucas, William ; Smith, Tiffany ; Beville,
Matthew ; gcanellos@milbank.com; mlaroche@milbank.com; DaSilva, Joe
Subject: SEC v. Binance Holdings Ltd., et al. (1:23-cv-01599)
CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you
recognize the sender and know the content is safe.
Jen and Matt,
6Page 9 Case 1:23-cv-01599-ABJ-ZMF Document 140-95-10 Filed 10/03/08/14/23 Page 8 of In response to certain of the issues raised by you in our call yesterday we propose the following.
1) We will provide any documents BAM has that are relevant to the Ceffu role in creating the new wallets
for Customer Crypto Assets (as required by Section II.2. of the Consent Order) and we will explain what
we understand the process to entail. We will attempt to do this by early next week.
2) On your request for depositions we propose that you take depositions of Erik Kellogg, Sara Sisenwein
and Tao Zhang, who runs BAM’s Clearing Team
. We also propose that
you depose
, a shard holder. If, after deposing
, you have additional questions
concerning those holding the shards and their use, we can discuss whether additional shard holders
should be deposed.
3) On your request for communications related to the audit of BAM, we assume you have all of the
auditors’ workpapers. If your questions or concerns relate to the issue of the custody agreement
involving BHL and whether it was operational or not, we will explain what we understand the facts are
related to that arrangement and how it worked.
Since the expedited discovery is addressed to matters “concerning the Customer Assets and their possession,
custody, control, transfer or movement, security segregation, availability and any encumbrances or limitations
. . . [that might make them unavailable],” we believe the foregoing should address many of the questions you
might have. However, we think it may be helpful to discuss these items. Are you available for a call today at
either 4:30 or 5pm ET?
Thanks,
Jeremy
Jeremy Adler | WilmerHale
7 World Trade Center
250 Greenwich Street
New York, NY 10007 USA
+1 212 295 6417 (t)
+1 212 230 8888 (f)
jeremy.adler@wilmerhale.com
Please consider the environment before printing this email.
This email message and any attachments are being sent by Wilmer Cutler Pickering Hale and Dorr LLP, are confidential, and may be privileged. If you are not
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For more information about WilmerHale, please visit us at http://www.wilmerhale.com.
7
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From:
Sent:
To:
Cc:
Subject:
Martens, Matthew T.
Monday, August 14, 2023 8:14 AM
Murphy, J. Emmett; Beville, Matthew; Canellos, George; McLucas, William; Laroche, Matthew; Adler,
Jeremy
Smith, Tiffany; Scarlato, Matthew; Farer, Jennifer; Tenreiro, Jorge
[EXT] RE: SEC v. Binance Holdings Ltd., et al. (1:23-cv-01599)
Dear Emmett:
We propose August 24 for Mr. Kellogg’s deposition and confirm August 31 for Mr. Zhang’s deposition.
We do not agree to depositions of Brian Shroder or Jasmine Lee nor do we
understand why you intend to take them consistent with the purpose of the Consent Order and given the other
witnesses we’ve offered to make available.
We disagree with your assertion that we “have now for the first time expressed a willingness to run targeted email
searches.” We previously produced email communications based on a targeted request. Moreover, we have asked you
on several occasions to propose more limited requests, but you have declined to do so. Regardless, we do not think it
would be useful for us to propose search parameters. We do not understand (and you have not explained) why you
need communications to assess the custody and security of customer assets, which leaves us guessing as to what subset
of communications about customer assets would satisfy your requests.
We assume we are at an impasse on the depositions of Mr. Shroder and Ms. Lee and the production of
communications. Please let us know by 5pm today whether you withdraw your requests; otherwise we will move for a
protective order with the Court.
Finally, we agree to accept service on behalf of the individuals identified below.
Best regards,
--Matt
From: Murphy, J. Emmett
Sent: Thursday, August 10, 2023 7:43 PM
To: Martens, Matthew T. ; Beville, Matthew
; gcanellos@milbank.com; McLucas, William ;
mlaroche@milbank.com; Adler, Jeremy
Cc: Smith, Tiffany ; Scarlato, Matthew ; Farer, Jennifer
; Tenreiro, Jorge
Subject: RE: SEC v. Binance Holdings Ltd., et al. (1:23-cv-01599)
EXTERNAL SENDER
1
PDF Page 5
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95-10 Filed 10/03/23
08/14/23 Page 4
3 of 9
8
Matt:
It is clear from your responses that we have a fundamental disagreement as to the scope of the Consent Order
and BAM’s compliance with it. These issues, ranging from the scope, substance, timing, and format of BAM’s
document productions and interrogatory responses, and now extending to depositions, have been set out
extensively in prior correspondence and our calls. We will be following up shortly regarding some of the
broader set of issues and outstanding items, which will likely need to be presented to the Court for resolution
given where we are.
In the interest of moving at least some discovery forward, while we disagree with your objection to the number
of depositions and continue to reserve all rights, we will amend our current list to the following BAM
deponents, subject to further modification based on an order from the Court:
1.
2.
3.
4.
5.
6.
Rule 30(b)(6) of BAM Trading Inc. (notice with topics will follow)
Erik Kellogg
Brian Shroder
Jasmine Lee
Tao Zhang
Based on the dates you provided today, we will plan to depose Zhang on August 31. Regarding Erik Kellogg,
whom we noticed for August 29, we have confirmed that Michael Fernandez of FGMK LLP is available to be
deposed remotely on August 23, so we ask that you provide alternative dates for Mr. Kellogg for August 24 or
25 or another day during the week of the 28th, if he is unavailable on the 29th. Please also provide dates for
the other individuals, and we can negotiate dates for the 30(b)(6) deposition once you have reviewed the
forthcoming notice. We also ask, once again, that you confirm whether you are authorized to and agree to
accept service for the individuals listed above.
We will seek further relief from the Court regarding the number of depositions as necessary. Given BAM’s
position that we are only entitled to 10 depositions under the Consent Order and our discussions to date, we
understand that you oppose such a request, but let us know if you would like to discuss further.
Finally, as to BAM’s position regarding the scope of communications BAM is willing to produce, to date you
have failed to elaborate on any purported burden, and as you acknowledged we have already narrowed the
scope of our requests for communications. You have now for the first time expressed a willingness to run
targeted email searches. As we stated, BAM has access to the data and custodians and is in the best position to
identify search terms (and to determine whether email is in fact the most appropriate source of relevant
communications). If BAM would like to propose search parameters to mitigate its general objections and
refusal to produce communications to date, we will consider them. But such proposal must be provided no later
than tomorrow COB. We are not willing to have extended negotiations further delay presenting the issue to the
Court.
Finally, given the numerous unresolved discovery issues, we reserve our right to reopen any deposition based
on additional discovery received.
Regards,
Emmett
From: Martens, Matthew T.
Sent: Thursday, August 10, 2023 11:00 AM
2
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4 of 9
8
To: Murphy, J. Emmett ; Beville, Matthew ;
gcanellos@milbank.com; McLucas, William ; mlaroche@milbank.com; Adler,
Jeremy
Cc: Smith, Tiffany ; Scarlato, Matthew ; Farer, Jennifer
; Tenreiro, Jorge
Subject: RE: SEC v. Binance Holdings Ltd., et al. (1:23-cv-01599)
CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you
recognize the sender and know the content is safe.
Dear Emmett:
As an initial matter, we take issue with your suggestion that we have “unreasonably limited” discovery to date. You
conducted a multi-year investigation and uncovered no evidence of misappropriation of client assets. Nevertheless,
during this litigation, BAM provided a sworn accounting, produced 194 documents (totaling 4,481 pages), and offered to
make four witnesses available for deposition. This is more than sufficient for what the Consent Order calls the “limited”
purposes of this expedited discovery. See Consent Order at 9 (authorizing “limited expedited discovery”).
As for depositions, the Consent Order expressly provides that depositions are governed by FRCP 30(a), which includes a
10 deposition limit. See Consent Order at 9 (“Pursuant to Rule 30(a) . . . , the SEC may take depositions”). While the
Order states that these depositions do not count against the limit that will apply to merits discovery, the expedited
discovery permitted by the Consent Order is itself subject to Rule 30(a)’s 10 deposition limit. Thus, your request for 14
depositions of BAM employees, not to mention your deposition of the auditor, is inappropriate. Your suggestion that I
provided no basis for BAM’s objections to the additional depositions is incorrect. I explained in my prior email that your
request also violates FRCP 26(b)(1). BAM is willing to make available a reasonable number of deponents, and in that
regard has agreed to make Erik Kellogg, Sara Sisenwein, Tao Zhang,
available for deposition.
We expect to provide proposed deposition dates shortly for the witnesses.
Finally, as for your request for communications, we have repeatedly stated that we believe a communications search in
the context of expedited discovery is inappropriate and unnecessary for your purposes. And the proposal in your August
2 email to “limit” your communications requests to “all” communications that meet broadly defined criteria for 14
custodians is unreasonably burdensome relative to the benefit, FRCP 26(b)(1), much less to do so by August 11. We fail
to understand how this burden can be justified, particularly given your years-long investigation and now that BAM has
provided a sworn accounting. Again, if you would like to request some targeted email searches, we are amenable to
such a request. But what you have proposed to date is unreasonable.
Best regards,
--Matt
From: Murphy, J. Emmett
Sent: Wednesday, August 9, 2023 1:52 PM
To: Martens, Matthew T. ; Beville, Matthew
; gcanellos@milbank.com; McLucas, William ;
mlaroche@milbank.com; Adler, Jeremy
Cc: Smith, Tiffany ; Scarlato, Matthew ; Farer, Jennifer
; Tenreiro, Jorge
Subject: RE: SEC v. Binance Holdings Ltd., et al. (1:23-cv-01599)
EXTERNAL SENDER
3
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Case 1:23-cv-01599-ABJ-ZMF Document 140-5
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08/14/23 Page 7
6 of 9
8
such responsive communications. We read your responses to date as a refusal to produce any relevant
communications for these witnesses, and we reserve our right to seek relief on this issue from the Court.
Please confirm or provide alternative dates for Erik Kellogg, Sara Sisenwein, Tao Zhang,
by noon tomorrow and provide the basis for your objection for each of the other witnesses by COB
tomorrow, so we can take any outstanding disputes to the Court. It seems the issues are well defined enough for
you to respond promptly in writing, but if you feel a call would be productive we are available at 5:30 this
evening.
Regards,
Emmett
From: Martens, Matthew T.
Sent: Tuesday, August 8, 2023 5:21 PM
To: Beville, Matthew ; gcanellos@milbank.com; McLucas, William
; mlaroche@milbank.com; Adler, Jeremy ;
Murphy, J. Emmett
Cc: Smith, Tiffany ; Scarlato, Matthew ; Farer, Jennifer
; Tenreiro, Jorge
Subject: RE: SEC v. Binance Holdings Ltd., et al. (1:23-cv-01599)
CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you
recognize the sender and know the content is safe.
Dear Emmett:
As we have previously advised, we are prepared to make Erik Kellogg, Sara Sisenwein, Tao Zhang,
available for deposition and will work with you to identify acceptable dates for those depositions to be conducted later
this month. As for your request to depose all seven shard-holders, we believe that this is improper under the Consent
Order. During the hearings and mediation over the shards held overseas, it was agreed that BAM would domesticate all
seven shards such that they are in the possession of individuals in the United States and thus subject to the jurisdiction
of the Court and the Court’s order precluding improper transfers of assets. Order at 1-2. BAM has complied with that
directive, and the SEC has identified no basis to now depose each of those domestic custodians. The request for
depositions of all seven domestic shard-holders is not “proportional to the needs of the case” and “the burden and
expense of the proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1). That said, as an accommodation
we are willing to make one domestic shard-holder of your choice available for deposition without prejudice to your right
to seek depositions of other shard-holders if you can demonstrate good cause. Please advise which of the seven your
prefer. Finally, with regard to your request for “all” communications, we have set forth our objections to that unduly
broad request in our response to your document requests. You have not proposed a narrowing in response. We are, of
course, willing to consider more reasonable proposals.
Best regards,
--Matt
From: Murphy, J. Emmett
Sent: Tuesday, August 8, 2023 1:45 PM
To: McLucas, William ; Smith, Tiffany ; Beville,
Matthew ; gcanellos@milbank.com; mlaroche@milbank.com;
JDaSilva@milbank.com
5
PDF Page 9
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08/14/23 Page 8
7 of 9
8
Cc: Scarlato, Matthew ; Farer, Jennifer ; Tenreiro, Jorge
Subject: RE: SEC v. Binance Holdings Ltd., et al. (1:23-cv-01599)
EXTERNAL SENDER
Counsel:
We write to follow up on the deposition notices sent on August 2 and related request for production of the deponents’
communications. We understood that you were going to consider Friday’s discussion regarding the depositions and get
back to us with the deponents you would agree to schedule. Please let us know as soon as possible -- and in any event
no later than today -- your position on the (1) deponents you agree to schedule and their availability (including any that
can be scheduled for next week); (2) basis for not agreeing to schedule the additional individuals we noticed, which
should be specific to each individual noticed and, as discussed, not simply based on the number of depositions noticed;
and (3) the production of communications for these noticed deponents, which we asked for on a rolling basis to be
completed by August 11. Particularly given the approaching discovery deadline, we would like to reach an agreement on
these issues to the extent possible, or we will need to consider whether to bring the issue before the Court.
Emmett
From: Farer, Jennifer
Sent: Friday, August 4, 2023 4:42 PM
To: Adler, Jeremy ; Scarlato, Matthew
Cc: McLucas, William ; Smith, Tiffany ; Beville,
Matthew ; gcanellos@milbank.com; mlaroche@milbank.com; DaSilva, Joe
Subject: RE: SEC v. Binance Holdings Ltd., et al. (1:23-cv-01599)
Jeremy,
We can do 5:30 today. Let us know if that works for you. If so, please send a dial-in.
Thanks.
Jennifer L. Farer
U.S. Securities and Exchange Commission
100 F Street N.E. | Washington, D.C. 20549
From: Adler, Jeremy
Sent: Friday, August 4, 2023 4:17 PM
To: Farer, Jennifer ; Scarlato, Matthew
Cc: McLucas, William ; Smith, Tiffany ; Beville,
Matthew ; gcanellos@milbank.com; mlaroche@milbank.com; DaSilva, Joe
Subject: SEC v. Binance Holdings Ltd., et al. (1:23-cv-01599)
CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you
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Jen and Matt,
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PDF Page 10
Case 1:23-cv-01599-ABJ-ZMF Document 140-5
95-10 Filed 10/03/23
08/14/23 Page 9
8 of 9
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In response to certain of the issues raised by you in our call yesterday we propose the following.
1) We will provide any documents BAM has that are relevant to the Ceffu role in creating the new wallets
for Customer Crypto Assets (as required by Section II.2. of the Consent Order) and we will explain what
we understand the process to entail. We will attempt to do this by early next week.
2) On your request for depositions we propose that you take depositions of Erik Kellogg, Sara Sisenwein
and Tao Zhang, who runs BAM’s Clearing Team
. We also propose that
you depose
, a shard holder. If, after deposing
, you have additional questions
concerning those holding the shards and their use, we can discuss whether additional shard holders
should be deposed.
3) On your request for communications related to the audit of BAM, we assume you have all of the
auditors’ workpapers. If your questions or concerns relate to the issue of the custody agreement
involving BHL and whether it was operational or not, we will explain what we understand the facts are
related to that arrangement and how it worked.
Since the expedited discovery is addressed to matters “concerning the Customer Assets and their possession,
custody, control, transfer or movement, security segregation, availability and any encumbrances or limitations
. . . [that might make them unavailable],” we believe the foregoing should address many of the questions you
might have. However, we think it may be helpful to discuss these items. Are you available for a call today at
either 4:30 or 5pm ET?
Thanks,
Jeremy
Jeremy Adler | WilmerHale
7 World Trade Center
250 Greenwich Street
New York, NY 10007 USA
+1 212 295 6417 (t)
+1 212 230 8888 (f)
jeremy.adler@wilmerhale.com
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