**Bottom line:** Bexley must not “produce nothing,” cannot invoke a corporate Fifth Amendment privilege, and must not trade its privileged investigation memorandum for a deposition extension. The correct course is to preserve, collect, produce nonprivileged documents on time, obtain separate counsel for Nora, seek a narrowly tailored civil stay of her deposition and overlapping merits discovery, refuse the CEO’s proposed declaration, and separately respond to the grand jury subpoena without waiving privilege.

---

## 14-Day Sequence

### Days 1–2: Immediate Protective Actions

1. **Issue a written litigation hold and preservation notice**  
   - Preserve all records relating to the $46 million distributor revenue, side letters, distributor communications, board materials, accounting records, emails, messaging systems, and drafts.  
   - Suspend auto-delete, recycle, and records-destruction programs.  
   - Preserve and segregate the privileged outside-counsel investigation memorandum.  
   - Begin collection through outside counsel or a forensic vendor, not through witnesses themselves.

2. **Retain separate counsel for Nora Keene immediately**  
   - Company counsel represents Bexley, not Nora.  
   - Nora has separate personal exposure. No one should advise her about testimony, invocation of the Fifth, cooperation, or the CEO’s proposed declaration until she has independent counsel.  
   - If the CEO or any other executive has similar personal exposure, retain separate counsel for them too.  
   - The company may advance fees if permitted, but the lawyer’s client must be the individual.

3. **Hold an emergency board/counsel session**  
   - The board should authorize preservation, collection, the request to the prosecutor, and a targeted civil stay motion.  
   - The board should not authorize “produce nothing.” That instruction is legally invalid for corporate records and risks sanctions.  
   - The board should not authorize producing the privileged memorandum “to both forums.” That would waive privilege.  
   - If feasible, form an independent committee of directors not involved in the underlying transactions, or at least have disinterested directors decide privilege and cooperation issues.  
   - Nora, if a director, should recuse from decisions about her own representation and testimony.

4. **Contact the prosecutor immediately**  
   - Ask, in writing and if possible by phone, for the government’s nonprivileged position on:  
     - whether Bexley is a target, subject, or witness;  
     - whether Nora is a target, subject, or witness;  
     - whether the government supports, opposes, or is neutral on a narrowly tailored civil stay of Nora’s deposition and overlapping merits discovery;  
     - whether the government will agree to a short extension of the grand jury return date if necessary.  
   - Do not wait for the answer before taking protective steps.

5. **Respond to shareholder counsel**  
   - Refuse the offer to produce the privileged memorandum in exchange for a 30-day deposition extension.  
   - State that Bexley will produce nonprivileged documents by the civil deadline.  
   - State that Bexley will seek a targeted protective order/stay concerning Nora’s deposition and overlapping merits discovery.  
   - Do not say Nora “will testify” or “will not invoke the Fifth.” Those assurances would be false or premature.

---

### Days 3–7: Civil Document Production and Stay Motion

6. **Begin civil document review immediately**  
   - Use a privilege-review protocol.  
   - Identify responsive nonprivileged records: side letters, distributor communications, accounting records, and board materials that do not contain privileged legal advice.  
   - Withhold privileged communications and work product, including the outside-counsel investigation memorandum.  
   - Prepare a privilege log for anything withheld.

7. **File a targeted stay/protective-order motion**  
   - File no later than Day 4 if possible, so the court can rule before Nora’s scheduled deposition on Day 10.  
   - The motion should ask the court to stay:  
     - Nora’s deposition;  
     - any other merits discovery that would require Nora or other exposed individual witnesses to testify about the same revenue-recognition transactions;  
     - only that overlapping discovery, not all civil discovery.  
   - The motion should state the legal standard: overlap between the civil and criminal cases, criminal prejudice, civil prejudice, court efficiency, public interest, and absence/presence of indictment.  
   - Explain that a grand jury subpoena has issued, that the prosecutor has said Bexley and Nora are “under active review,” and that the civil and criminal cases concern the same side-letter and revenue-recognition facts.  
   - Propose a workable alternative:  
     - complete nonprivileged document production on time;  
     - serve a privilege log;  
     - allow preliminary-injunction briefing to proceed on documents and legal arguments;  
     - stay only depositions and testimonial discovery that would force a choice between self-incrimination and civil defense;  
     - hold a status conference in 60 days or after the government’s investigation resolves.

8. **Do not produce the privileged memorandum**  
   - Producing it to shareholder counsel, the government, or both would waive attorney-client privilege and work-product protection.  
   - A civil protective order would not protect it from the grand jury.  
   - The plaintiffs’ offer of a 30-day extension is not a legitimate reason to waive privilege.

9. **Produce nonprivileged civil documents by Day 7**  
   - Do not default on the civil production deadline.  
   - Produce the responsive ordinary business records.  
   - Withhold privileged material and produce a privilege log.  
   - If a rolling production is necessary, begin before Day 7 and complete by the deadline.

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### Days 8–10: Nora’s Deposition and Fifth Amendment Risks

10. **Prepare for the possibility that the stay is denied**  
    - If the court has not ruled by Day 10, seek an emergency administrative stay or an order postponing the deposition.  
    - Nora’s separate counsel should file her own protective-order motion if necessary; she should not rely only on the company’s motion.  
    - If the deposition proceeds, Nora may appear and invoke the Fifth Amendment on a question-by-question basis through her own counsel.  
    - She should not engage in a blanket refusal to appear or refuse to answer background questions.  
    - The company should not coach her, tell her to answer, or tell her to invoke. That is her counsel’s decision.

11. **Do not use the CEO’s proposed declaration**  
    - Nora must not sign a statement saying “every distributor sale was final and no executive knew otherwise.”  
    - She has not reviewed all side letters. The statement likely would not be based on personal knowledge.  
    - It could expose Nora to perjury, false-statement, or obstruction risk.  
    - It could also be a false civil assurance and harm the company.  
    - The CEO should be told, through counsel, to stop requesting that declaration.

12. **Understand the adverse-inference risk**  
    - If Nora validly invokes the Fifth in the civil case, the factfinder may draw a reasonable adverse inference only if independent evidence supports it.  
    - Her invocation alone does not automatically prove liability and does not automatically bind Bexley.  
    - The company should try to avoid creating that risk through a stay, but it cannot guarantee no inference if the stay is denied.

---

### Days 11–12: Preliminary-Relief Opposition

13. **Prepare Bexley’s opposition to preliminary relief**  
    - The opposition is due on Day 12. Do not default on it.  
    - Use nonprivileged documents and admissible evidence.  
    - Do not rely on the privileged investigation memorandum.  
    - Do not make factual assertions unsupported by the record or inconsistent with known side letters.  
    - If the preliminary-relief motion requires witness testimony that overlaps with the grand jury investigation, the stay motion should mention that, but the written opposition can usually proceed without depositions.

14. **If more time is needed, seek an extension before the deadline**  
    - Do not miss the deadline.  
    - If the stay motion is pending, ask the court to extend the preliminary-relief briefing if necessary, but only to the extent justified.

---

### Days 13–14: Grand Jury Response

15. **Complete grand jury document collection and review**  
    - The grand jury subpoena is separate from the civil case.  
    - Respond by Day 14 or obtain an extension before Day 14.  
    - Produce nonprivileged responsive records: side letters, distributor communications, accounting records, and nonprivileged board materials.  
    - Withhold privileged materials, including the outside-counsel investigation memorandum, and assert privilege.  
    - If the government challenges the privilege claim, litigate it in the appropriate forum. Do not voluntarily waive.

16. **Do not let the civil case delay the grand jury response**  
    - A civil protective order does not prevent the grand jury from subpoenaing materials.  
    - The company must comply with the grand jury subpoena independently unless it has a valid objection or privilege.  
    - If the response cannot be completed by Day 14, seek an extension from the prosecutor or court before the deadline, not after.

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## Information to Request from Prosecutors and How to Proceed If They Decline

Request the following in writing:

- Whether Bexley and Nora are targets, subjects, or witnesses.  
- Whether the government supports, opposes, or is neutral on a narrowly tailored civil stay.  
- Whether the government will stipulate to an extension of the grand jury return date if needed.  

If the prosecutor declines to provide that information:

- Do not treat silence as either support or opposition.  
- Proceed with the civil stay motion based on the facts already known: the grand jury subpoena, the return date, and the statement that Bexley and Nora are “under active review.”  
- In the stay motion, state only what can be stated without revealing grand jury secrecy problems. If necessary, ask the court to allow a sealed or in camera submission.  
- If the court wants the government’s view, ask the court to invite the United States to file a statement.  
- Do not condition the civil production deadline or grand jury response on receiving the prosecutor’s response.

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## Board Governance and Communications

- Board members should not communicate directly with Nora or other witnesses about facts, testimony, or invocation.  
- All factual interviews should be conducted through counsel or by counsel.  
- Board minutes should not discuss “produce nothing,” “destroy,” or “give the memo to show cooperation.” Such statements could become evidence of obstruction or waiver.  
- If the board and individual executives have diverging interests, the company should not enter a common-interest agreement without separate counsel and a genuine shared legal strategy.  
- A common-interest agreement preserves existing privilege only for communications pursuing a shared legal strategy. It does not make underlying facts privileged, and it cannot justify conflicted joint representation.

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## Priority Order

1. Preserve everything.  
2. Retain separate counsel for Nora and any other exposed executive.  
3. Reject the privileged-memo-for-extension exchange.  
4. File the targeted stay/protective-order motion.  
5. Produce nonprivileged civil documents by Day 7.  
6. Do not file the CEO’s proposed declaration.  
7. If the stay is denied, let Nora’s separate counsel advise her on invocation.  
8. File the preliminary-relief opposition by Day 12.  
9. Respond to the grand jury subpoena by Day 14, asserting valid privileges.  

This sequence preserves the civil deadlines, does not waive privilege, does not make false assurances, and protects Nora’s and any other exposed individual’s criminal protections to the extent the law allows.