# 14-Day Parallel-Proceeding Sequence for Bexley Medical Devices ## I. Operating constraints: what Bexley must not do Before sequencing the days, fix the non-negotiable rules under the supplied framework: 1. **No entity-wide Fifth Amendment refusal.** Bexley, as a corporation, has no privilege against self-incrimination. It cannot refuse to produce nonprivileged corporate records merely because the records touch a criminal investigation. 2. **Individuals retain personal privilege.** Nora Keene, the CEO, and any other exposed executive may personally invoke the Fifth Amendment if truthful answers could incriminate them. The company cannot direct them to answer or invoke. 3. **No voluntary waiver of the privileged investigation memorandum.** Under the supplied rules, disclosing the outside-counsel investigation memorandum to either the shareholder adversary or the government waives privilege. A civil protective order does not protect it from a grand jury subpoena and does not restore waiver after voluntary disclosure. 4. **No quid pro quo for privilege.** Bexley should not offer the privileged memorandum in exchange for a deposition extension, civil stay, or “cooperation” credit. It can show cooperation by preserving, producing nonprivileged records, responding timely, and seeking tailored sequencing—not by waiving privilege. 5. **No false or overbroad civil declarations.** The proposed declaration that “every distributor sale was final and no executive knew otherwise” is not acceptable as written. It is not based on the personal knowledge of one person, it covers all sales and all executives, and Nora has not reviewed all side letters. 6. **No coaching or factual coordination among witnesses.** Company counsel may advise the entity on legal strategy, but may not coach witnesses, harmonize accounts, or direct individual testimony. Exposed individuals need separate counsel before receiving advice about testimony, invocation, or cooperation. 7. **Preservation comes first.** Bexley must preserve relevant records in both the civil and criminal matters, suspend deletion, and avoid altering, restoring, reorganizing, or “cleaning up” potentially relevant materials. 8. **Civil deadlines are real; criminal deadlines are real.** Bexley must not default in either forum. The civil document production is due in seven days, Nora’s deposition in ten days, the opposition to preliminary relief in twelve days, and the grand jury response in fourteen days. --- ## II. 14-day sequence ### Day 1: Immediate preservation, governance, separate counsel, and status request **1. Issue a dual-matter litigation hold and suspend deletion.** - Issue a litigation hold covering: - side letters; - distributor communications; - board materials; - accounting records; - fourth-quarter revenue-recognition materials; - emails, instant messages, collaboration platforms, and shared drives of key custodians; - documents reflecting the outside-counsel investigation; - forensic images or preserved backups where appropriate. - Suspend auto-delete, mailbox retention expiration, and routine archiving. - Instruct IT and records personnel not to alter, restore, reorganize, delete, or create new “clean” versions in a way that destroys metadata. - Maintain chain of custody for collected materials. **2. Form an independent board committee or designate independent directors to oversee the response.** Because the board has not formed an independent committee and some directors have personal exposure or conflicting interests: - Identify directors with no personal exposure. - Recuse directors with personal interest from decisions affecting their own exposure. - Have the independent group oversee: - privilege decisions; - preservation; - conflict management; - communications; - separate counsel engagement; - cooperation posture. - If necessary, the independent directors should obtain their own counsel. **3. Engage separate counsel for Nora Keene and any other exposed executive.** - Nora requires separate counsel before any advice about: - her deposition; - invoking the Fifth Amendment; - signing a declaration; - cooperating with the company or government. - The CEO also requires separate counsel if he has personal exposure. - Identify other potentially exposed executives—e.g., controllers, sales leaders, revenue-accounting personnel, board participants—and engage separate counsel as needed. - Company counsel must not represent these individuals. **4. Memorialize the prosecutor phone call and request status immediately.** - Make a contemporaneous note of the prosecutor’s statement that Bexley and Nora are “under active review,” including date, time, caller, and substance. - Request, in writing or by follow-up email with telephone confirmation: 1. whether Bexley is a target, subject, or witness; 2. whether Nora is a target, subject, or witness; 3. whether any other Bexley personnel are targets, subjects, or witnesses; 4. whether the government intends to subpoena or seek testimony from the same side letters, distributor communications, board materials, and accounting records; 5. whether the government will support, oppose, or remain neutral on a narrowly tailored civil stay or protective order; 6. whether the government will agree to sequencing, such as civil document production before executive depositions; 7. the identity of the point of contact and a reasonable deadline for response. - Ask for a response by Day 3, but do not hold the civil case hostage if the government declines. **5. Begin collection and privilege review.** - Assemble a privilege-review team. - Segregate the outside-counsel investigation memorandum and related privileged materials. - Do not distribute the memorandum outside the privileged circle. - Do not produce anything yet. First identify what is responsive, nonprivileged, and producible. **6. Instruct the board and employees on conduct.** - No public statements about the investigation or the side letters. - No informal discussions with shareholder counsel or the government that could be characterized as offering privileged material. - No deletion, “archiving,” or reorganization of relevant records. - No meeting of executives or witnesses to align factual accounts. - No suggestion to Nora or any executive to answer, refuse, or sign anything as part of company strategy. --- ### Day 2: Collection, privilege log, civil meet-and-confer, and motion drafting **1. Continue responsive-document collection and review.** - Focus on the categories subpoenaed in the grand jury and demanded in civil discovery: - side letters; - distributor communications; - board materials; - accounting records. - Identify: - nonprivileged ordinary business records; - privileged attorney-client communications; - work product; - the outside-counsel investigation memorandum; - underlying nonprivileged facts embedded in privileged materials. - Remember: facts are not privileged merely because they appear in a privileged memorandum. **2. Draft privilege logs.** - Prepare privilege logs for: - civil production; - grand jury response. - Use categories sufficient to assert privilege without revealing privileged content. - Do not describe the privileged memorandum in a way that reveals the substance of legal advice or the investigation strategy. **3. Meet and confer with shareholder counsel.** Address the civil demands without making false assurances: - State that Bexley is preserving and collecting responsive records. - State that Bexley will produce responsive, nonprivileged documents by the seven-day deadline. - State that certain materials are protected by privilege and will be logged. - Decline to produce the outside-counsel investigation memorandum. - Decline the “30-day extension only if Bexley produces the memorandum” offer. - Propose a workable alternative: - immediate nonprivileged document production; - privilege log; - short targeted postponement of Nora’s deposition; - limited sequencing of executive depositions; - continued civil progress through nonprivileged discovery. Do not agree to any condition that requires disclosure of privileged material. **4. Draft the targeted civil protective order or stay request.** The request should be narrowly tailored. A workable ask is: - Postpone Nora Keene’s deposition for 14 days. - Stay, for the same period, civil merits discovery that would require Bexley executives to state personal knowledge, intent, or awareness about the disputed side letters or revenue recognition. - Allow all nonprivileged document production to continue. - Allow depositions of non-exposed fact witnesses if appropriate. - If the court denies the stay, preserve the right of individuals to invoke the Fifth Amendment through separate counsel. The motion should propose this as a sequencing solution, not an attempt to shut down the civil case. **5. Follow up with the prosecutor.** - If the prosecutor has not responded, send a brief follow-up. - If the prosecutor declines to state status, note that and move forward. --- ### Day 3: File or serve the targeted civil protective-order/stay request **1. File the targeted stay or protective-order motion in civil court.** The motion should make the following showings: - **Overlap.** The civil discovery and grand jury investigation concern the same side letters, distributor communications, board materials, accounting records, and revenue-recognition practices. - **Criminal prejudice.** Nora’s deposition could force her personally to choose between answering civil questions and protecting herself in a criminal matter. The prosecutor has said Bexley and Nora are “under active review,” even without a written target or subject designation. - **Civil prejudice.** Shareholders seek expedited discovery. Bexley mitigates this by producing nonprivileged documents now and proposing a short, targeted postponement rather than a general stay. - **Court efficiency.** Sequencing nonprivileged document production first avoids duplicative discovery and reduces the risk of later re-deposition or inconsistent statements. - **Public interest.** The civil court can preserve the rights of individual witnesses while allowing the civil case to move forward through documents and non-exposed witnesses. - **Indictment status.** No indictment has issued, making a short sequencing stay more appropriate. **2. Request an expedited ruling before Day 10.** The motion should ask the court to rule before Nora’s deposition so that Bexley and Nora’s separate counsel can plan. **3. Include a certification about the prosecutor request.** State that Bexley requested status information from the government and, if applicable, that the government has not responded, has declined, or has provided a position. **4. If the government responds favorably, seek proper handling.** If the government supports a short stay or sequencing, ask that it be reflected through proper court process, such as a consent, letter filed in the civil case, or status conference. Avoid informal ex parte arrangements that could create fairness or waiver issues. **5. If the government declines to respond, proceed on the known facts.** Do not wait indefinitely. The known facts are: - active review; - no written designation; - overlapping records; - personal exposure for Nora and possibly others. Those facts support a short, tailored request. --- ### Days 4–6: Finalize civil production, prepare opposition, and prepare individuals through separate counsel **1. Finalize the civil nonprivileged production.** - Complete review of side letters, distributor communications, board materials, and accounting records. - Prepare redactions and privilege logs. - Do not include the outside-counsel investigation memorandum. - Prepare a production cover letter that is truthful and limited. It should say, for example, that Bexley has produced responsive, nonprivileged documents identified through a reasonable search, that privileged materials are logged, and that production is subject to supplementation. Do **not** state that “no side letters exist,” “all sales were final,” or “no executive knew otherwise” unless those statements are true, complete, and based on personal knowledge. **2. Prepare the opposition to preliminary relief.** - Build the opposition on admissible, nonprivileged evidence and legal argument. - Do not rely on the broad exculpatory declaration. - If a declaration is necessary, use only a person with personal knowledge, after separate counsel if that person is exposed, and limit the declaration to what that person personally knows. - If no one can truthfully sign the proposed declaration, do not file it. **3. Prepare Nora through her separate counsel—not company counsel.** - Nora’s separate counsel should advise her on: - her personal criminal exposure; - whether to answer or invoke; - whether to sign any declaration; - how to handle deposition questions. - Company counsel should not interview Nora to prepare her factual account or coordinate her deposition answers. - Company counsel may handle entity-level legal issues, but individual advice must come from separate counsel. **4. Prepare other exposed executives similarly.** - If any other executive may be deposed, subpoenaed, or asked to make statements, secure separate counsel before advice. - Do not coordinate factual accounts. **5. Continue seeking a civil ruling.** - If the court has not ruled, request a status conference or expedited hearing before Day 10. --- ### Day 7: Civil document production **1. Serve the civil nonprivileged document production.** Produce: - responsive side letters; - responsive distributor communications; - responsive nonprivileged board materials; - responsive accounting records; - any other responsive ordinary business records identified. Also serve: - privilege logs; - redaction explanations limited to privilege grounds; - a cover letter preserving objections and stating that production is subject to supplementation. **2. Do not produce the privileged investigation memorandum.** If shareholder counsel presses, restate that the memorandum is protected and will not be voluntarily disclosed. The court, not the parties, should resolve any compelled-production dispute. **3. Do not use the production to make broad factual assurances.** The production should reflect what has been identified and reviewed. It should not be accompanied by a blanket statement that the records prove the sales were final or that no executive knew otherwise. --- ### Days 8–9: Await civil ruling; prepare for deposition if no stay **1. If the civil court grants the targeted stay:** - Postpone Nora’s deposition as ordered. - Continue civil document production and opposition preparation. - Coordinate with shareholder counsel on a rescheduled date. - Do not let the stay become a general silencing of the civil case. **2. If the civil court denies the stay or does not rule in time:** - Nora’s separate counsel should be ready to advise her at the deposition. - Company counsel should not direct her answers or invocations. - The deposition should proceed under the protocol proposed in the protective-order motion, to the extent the court adopted it. **3. If Nora has not obtained separate counsel by Day 9:** - Make an immediate effort to secure counsel. - If counsel cannot be obtained before Day 10, seek an emergency short postponement. - If the deposition must proceed and counsel is unavailable, Nora should not be left without representation; she may invoke through available counsel or, at minimum, through a lawyer present at the deposition. Company counsel should not substitute for individual counsel. **4. Finalize the preliminary-relief opposition.** - If the deposition occurs on Day 10 and a transcript is not available by Day 12, either: - file the opposition on the current record, or - file a short, justified request for a brief supplement or continuance of the hearing, while ensuring that Bexley does not default on the opposition deadline. --- ### Day 10: Nora Keene deposition, if not stayed **1. Proceed with Nora’s deposition only if the deposition has not been stayed.** - Nora’s separate counsel must be present. - Company counsel may be present for entity-level issues, but individual legal advice comes from Nora’s separate counsel. **2. Invocation protocol.** If a question is asked: - Nora’s separate counsel decides whether to object and whether to invoke the Fifth Amendment. - If a truthful answer could incriminate Nora personally, she may invoke. - The invocation should be specific to incriminating questions, not a blanket refusal if avoidable. - The record should reflect that the invocation is based on personal self-incrimination concerns in a parallel criminal investigation. **3. Corporate questions.** - Nora may still have to answer non-incriminating questions within her knowledge or within the corporate custodian scope, as applicable. - Her personal invocation does not automatically prevent Bexley from producing corporate records or answering through other means. **4. Company posture at the deposition.** - Do not coach Nora. - Do not suggest she answer to protect the company. - Do not suggest she invoke to protect the company. - Preserve the record for any later motion on adverse inference, sequencing, or protective relief. **5. If Nora invokes:** - The civil factfinder may draw a reasonable adverse inference only if independent evidence supports the inference. - The invocation is not a confession. - It does not automatically establish liability. - It does not automatically bind the corporation. - Bexley should be prepared to show that the invocation was driven by the parallel criminal investigation and that the independent evidence does not support the proposed inference. --- ### Days 11–12: File opposition to preliminary relief **1. File the opposition by Day 12.** The opposition should: - rely on nonprivileged documents and legal argument; - avoid false or overbroad declarations; - not assert that “every distributor sale was final” or that “no executive knew otherwise” unless such a statement is true, complete, and based on personal knowledge; - if necessary, state that certain factual assertions cannot be made because the relevant witness has not completed review or has separate personal exposure. **2. Do not use the CEO’s proposed declaration.** The proposed declaration is not acceptable. Nora should not sign it, and the CEO should not sign it in that form. If the CEO or another person wishes to sign a declaration, it must be: - truthful; - based on personal knowledge; - limited to what the signer actually knows; - not a broad exculpatory assertion about all sales and all executives; - reviewed by separate counsel if the signer has personal exposure. **3. If preliminary relief depends on Nora’s deposition:** - If the deposition was stayed, ask for a short continuance of the hearing if necessary. - If the deposition occurred but the transcript is not yet available, request a short, justified supplement or continuance of the hearing while ensuring the opposition itself is timely filed. --- ### Day 13: Finalize grand jury production **1. Prepare the grand jury response.** - Use the same responsive-document universe as the civil production, adjusted for the grand jury subpoena. - Produce nonprivileged responsive records for: - side letters; - distributor communications; - board materials; - accounting records. - Serve privilege logs for privileged materials. - Do not produce the outside-counsel investigation memorandum. **2. Assert privilege clearly.** If the subpoena or a prosecutor inquiry reaches the investigation memorandum: - State that the document is protected by attorney-client privilege and/or work product. - Do not offer to produce it voluntarily. - If the government insists, seek a court resolution before producing. **3. Do not rely on a civil protective order.** A civil protective order does not prevent the grand jury from subpoenaing the same material and does not restore privilege after voluntary disclosure. **4. Final status check with prosecutors.** If status information is still missing and a response may affect the next civil steps, make one final, concise request. If the government declines, proceed on the existing record. --- ### Day 14: Grand jury production and civil follow-through **1. Produce the grand jury nonprivileged responsive records by the deadline.** - Meet the 14-day subpoena deadline. - Produce responsive nonprivileged records. - Provide privilege logs and redactions. - Preserve objections. - Do not produce the privileged investigation memorandum. **2. If the government demands privileged material:** - Do not produce voluntarily. - Assert privilege. - Seek a court order or other appropriate protection before producing. - Under the supplied rules, disclosure to the government waives privilege, so the goal is to avoid voluntary disclosure and to litigate any compelled-production issue before production. **3. Implement the civil court’s orders.** - If the deposition was stayed, reschedule it. - If the deposition occurred, comply with any order on adverse inference, protective terms, or follow-up discovery. - If the opposition was heard or is pending, comply with the court’s schedule. **4. Continue preservation.** - The litigation hold remains in effect. - No deletion, alteration, or factual coordination. - Continue supplemental review in both matters. --- ## III. Key issue handling in more detail ### A. Preservation and collection in both matters Preservation must be the first substantive action, before production, before interviews, and before any meeting that could create new documents or alter existing ones. The preservation obligation is not divided between the civil and criminal matters. Use one comprehensive hold covering both. The hold should include: - side letters and amendments; - distributor agreements and communications; - revenue-recognition analysis; - accounting records and workpapers; - board and committee materials; - emails and messages of executives, controllers, sales personnel, and distributors; - devices and cloud storage; - backups; - materials reflecting the outside-counsel investigation. Avoid: - deleting “duplicate” or “old” files; - restoring data in a way that destroys metadata; - reorganizing folders to make them “cleaner”; - instructing employees not to preserve certain categories; - creating new summaries that replace original records. The company may prepare and preserve privileged legal advice, but it should not create privileged materials to shield underlying business facts. --- ### B. Corporate production obligations versus individual self-incrimination rights Bexley must produce nonprivileged corporate records. It cannot say, “We refuse because the documents may incriminate us.” The corporation has no Fifth Amendment privilege. That rule does not eliminate individual rights. If Nora, the CEO, or another executive is deposed or subpoenaed, that individual may invoke the Fifth Amendment if a truthful answer could personally incriminate them. The practical consequences: 1. **Document production:** Bexley produces responsive, nonprivileged corporate records. Individual self-incrimination concerns do not justify withholding corporate documents. 2. **Depositions:** Individual witnesses may invoke through separate counsel. The company cannot require them to answer, and it cannot require them to invoke. 3. **Custodian certifications:** Certifications should be truthful and limited. If an exposed individual is uncomfortable signing a broad certification, use a non-exposed officer or a limited certification to the extent permitted. Do not force an exposed individual to make a personal statement that could incriminate them. 4. **Adverse inference:** If an individual invokes in civil discovery, the civil factfinder may draw a reasonable adverse inference if independent evidence supports it. That is a litigation risk, not a reason to refuse corporate document production. --- ### C. Separate counsel for Nora and other exposed executives This is urgent. Nora does not yet have individual counsel. The CEO also may have personal exposure. Any other executive whose personal interests may diverge from the entity needs separate counsel before receiving advice about: - deposition testimony; - Fifth Amendment invocation; - declarations; - cooperation; - government interviews; - personal criminal exposure. Company counsel may: - advise the entity; - advise the board committee; - handle corporate preservation and production; - manage civil and criminal procedural strategy at the entity level. Company counsel may not: - advise Nora personally; - advise the CEO personally; - direct Nora whether to answer or invoke; - tell the CEO how to write a declaration; - coordinate witness accounts; - represent the entity and the individuals jointly if interests diverge. A common-interest agreement may allow entity counsel and separate individual counsel to share existing privileged communications about a shared legal strategy, but only if: - the privilege already exists; - the communication concerns shared legal strategy; - there is no unmanaged conflict; - the agreement does not turn underlying facts into privileged material; - it does not permit conflicted joint representation. Do not use a common-interest agreement as a way to share privileged investigation material with the government or the civil adversary. --- ### D. Civil document production due in seven days Bexley should meet the seven-day deadline with a responsive, nonprivileged production. The production should include: - side letters; - distributor communications; - nonprivileged board materials; - accounting records; - other responsive ordinary business records. It should also include: - privilege logs; - redactions; - a truthful production letter; - preservation of objections; - a commitment to supplement if additional responsive records are identified. The production letter should avoid broad exculpatory language. It should not say, for example: - “all distributor sales were final”; - “no side letters created return rights”; - “no executive knew otherwise”; - “the revenue was properly recognized”; unless those statements are true, complete, and supported by the signer’s personal knowledge. If shareholder counsel insists on the privileged memorandum as a condition of an extension, Bexley should decline and let the court decide. --- ### E. Targeted stay or protective-order request concerning Nora’s deposition and overlapping merits discovery The request should be narrow. A good formulation is: 1. **Postpone Nora Keene’s deposition for 14 days.** 2. **Stay executive depositions and merits discovery that require personal statements about knowledge, intent, or awareness of the disputed side-letter terms for the same period.** 3. **Allow all nonprivileged document production to proceed.** 4. **Allow depositions of non-exposed fact witnesses, if appropriate.** 5. **If the stay is denied, preserve the right of individuals to invoke the Fifth Amendment through separate counsel.** 6. **Set a short status conference if the government’s position remains unclear.** This is not a request to shut down the civil case. It is a sequencing request. The civil court should weigh: - overlap between civil and criminal discovery; - criminal prejudice to individual witnesses; - civil prejudice to shareholders; - court efficiency; - public interest; - whether an indictment has issued. Here: - overlap is high; - criminal prejudice is real because of “active review” and personal exposure; - civil prejudice is mitigated by immediate document production; - sequencing promotes efficiency; - no indictment has issued. If the court denies the stay, Bexley should not become silent. It should: - produce documents; - proceed to deposition; - allow individuals to invoke if valid; - file the opposition; - respond to the grand jury. If the court grants the stay, Bexley should not use it to stop all civil progress. It should continue nonprivileged discovery and respond to preliminary-relief deadlines. --- ### F. Risk and limits of civil adverse inferences If Nora invokes the Fifth Amendment at her civil deposition, shareholders may move to use the invocation. Under the supplied rules: - a valid invocation may support a reasonable adverse inference; - the inference is reasonable only if independent evidence supports it; - invocation does not automatically establish liability; - invocation does not automatically bind the corporation. This means Bexley has both risk and limits. **Risk:** If the independent evidence is strong—e.g., side letters showing return rights, emails showing executive awareness, accounting records showing revenue was booked despite known returnability—the invocation may be damaging. **Limits:** If the independent evidence is weak or ambiguous, the invocation may not support a reasonable inference. The fact that the invocation is driven by a parallel criminal investigation is also relevant. Mitigation steps: - seek a targeted stay; - produce nonprivileged documents that may undercut the inference; - use non-exposed witnesses if available; - avoid overbroad declarations; - if invocation occurs, argue that the inference is not reasonable or that it should not bind the corporation absent independent corporate proof; - preserve the record on the parallel-proceeding basis for invocation. Bexley should not try to avoid invocation by pressing Nora to testify. That would risk criminal exposure, false statements, and a conflict between company and individual interests. --- ### G. The privileged memorandum and the proposed extension exchange The outside-counsel investigation memorandum is privileged. Bexley should not produce it to: - shareholder counsel; - the grand jury; - the civil court voluntarily; - the government voluntarily. The board’s instinct to “show cooperation” by giving the memorandum to both forums is dangerous. Under the supplied rules, voluntary disclosure to the adversary or government waives privilege. A civil protective order does not prevent a grand jury subpoena and does not restore waiver. The shareholder counsel offer—30-day deposition extension only if Bexley produces the memorandum—should be declined. Bexley’s counter should be: - “We will produce responsive, nonprivileged documents by the deadline.” - “We will log privileged materials.” - “We seek a short, targeted postponement of Nora’s deposition and overlapping executive merits discovery.” - “We will continue the civil case through nonprivileged discovery and non-exposed witnesses.” - “We will not condition sequencing or extensions on disclosure of privileged investigation materials.” If the court later compels production, Bexley should object, seek protective relief, and consider appellate review. But the primary strategy is to avoid voluntary disclosure. If the memorandum contains underlying facts, the underlying nonprivileged documents and facts are not privileged merely because they are discussed in the memorandum. --- ### H. The CEO’s proposed declaration The CEO wants Nora to sign a declaration stating that “every distributor sale was final and no executive knew otherwise.” That declaration should not be signed. Reasons: 1. **Lack of personal knowledge.** Nora has not reviewed all side letters. She cannot truthfully declare that every sale was final. 2. **Overbroad scope.** The statement covers all distributor sales and all executives. One person, even Nora, cannot vouch for the knowledge or conduct of every executive and every transaction. 3. **No individual counsel.** Nora does not yet have separate counsel. She should not receive company advice about signing a declaration that could affect her personal exposure. 4. **Conflicting interests.** The CEO’s desire for the declaration may serve the company or the CEO personally, but it may not serve Nora. Company counsel cannot coordinate that decision. 5. **Risk of false civil filing.** A declaration that is not truthful or not based on personal knowledge creates civil and possibly criminal exposure. If a declaration is needed for the opposition to preliminary relief, it should be: - from a person with personal knowledge; - limited to what that person personally knows; - truthful; - not a broad exculpatory conclusion; - reviewed by separate counsel if the signer is personally exposed. For example, a proper declaration might say: > “I personally reviewed the fourth-quarter distributor sales report and the side-letter index prepared by accounting as of [date]. Based on that review, I know that [specific fact]. I do not have personal knowledge that every distributor sale was final, and I do not have personal knowledge of what every executive knew.” That is not the same as the proposed exculpatory declaration. --- ### I. Information to request from prosecutors, and what to do if they decline **Request immediately:** 1. Written or confirmed status for: - Bexley; - Nora Keene; - any other Bexley personnel. 2. Whether the government uses the terms target, subject, or witness, and which applies. 3. Whether the government intends to seek the same documents or testimony in the next 30 days. 4. Whether the government will support, oppose, or remain neutral on a narrowly tailored civil stay or protective order. 5. Whether the government will agree to sequencing, such as: - civil document production first; - executive depositions after government status is clarified. 6. The identity of the point of contact and a reasonable response deadline. **If the government says Bexley or Nora is a target or subject:** - The civil stay request becomes stronger. - Separate counsel becomes even more urgent. - Bexley still must produce nonprivileged corporate records. **If the government says they are only witnesses:** - The civil prejudice from invocation may be lower, but personal exposure can still exist. - Separate counsel and preservation remain necessary. - A short stay may still be appropriate if overlap is significant. **If the government remains neutral:** - File the civil motion based on known facts. - Argue that “active review” without a written designation is enough to support a short sequencing stay. **If the government declines to state status or position:** - Do not wait indefinitely. - File the civil protective-order/stay motion with a certification that Bexley requested status and the government did not provide it. - Ask the civil court for a short, targeted stay based on the reasonable risk of parallel proceedings. - If the court wants the government’s position, ask the court to direct the government to respond or to grant a short continuance for that purpose. - If the court denies the stay, proceed: produce documents, handle the deposition, file the opposition, and respond to the grand jury. --- ### J. Board governance and communications **1. Independent committee.** The board should form an independent committee of directors without personal exposure. That committee should oversee: - preservation; - privilege decisions; - conflict management; - separate counsel; - communications; - cooperation posture; - responses to shareholders and the government. Directors with personal exposure should recuse themselves from decisions affecting their own exposure. **2. Separate counsel for conflicted directors.** If directors have personal exposure, they need their own counsel. The company cannot represent the board as a whole where individual directors’ interests diverge from the entity or from one another. **3. No waiver decisions by the full board if conflicts exist.** A board cannot use its corporate authority to force individual privilege waivers or to direct individual testimony. It can direct entity-level decisions, but not personal Fifth Amendment rights. **4. Communications discipline.** Internal communications should be limited and careful: - remind employees of the litigation hold; - remind them not to alter or delete records; - remind them not to discuss the investigation in a way that coordinates factual accounts; - avoid unnecessary internal speculation about guilt or innocence. External communications: - no public statements about the investigation; - no public statements that side letters do not exist or that all sales were final; - no informal promises to shareholder counsel or prosecutors that privileged material will be produced; - no statements that imply the company is “cooperating” by waiving privilege. **5. Cooperation without waiver.** Bexley can show cooperation by: - preserving records; - producing responsive nonprivileged documents; - responding timely to subpoenas; - providing privilege logs; - seeking tailored sequencing; - allowing the civil case to proceed through nonprivileged discovery. It should not show cooperation by voluntarily disclosing privileged investigation material. --- ## IV. Critical path: order of operations The following order is essential to avoid waiver, default, or conflict: 1. **Preserve first.** Issue the litigation hold and suspend deletion before production, interviews, or strategic meetings. 2. **Secure separate counsel before individual advice.** Nora, the CEO, and any other exposed executive need separate counsel before receiving advice about testimony, invocation, declarations, or cooperation. 3. **Conduct privilege review before production.** Do not produce anything until responsive and privileged materials are identified and segregated. 4. **Request prosecutor status early.** Do not let the missing target/subject/witness status stop the case. Request it on Day 1 and proceed if the government declines. 5. **Produce nonprivileged civil documents by Day 7.** Meet the civil deadline with responsive nonprivileged records and privilege logs. 6. **File the targeted civil protective order/stay before Day 10.** The request should be short and tailored, not a general stay of the civil action. 7. **Handle Nora’s deposition on Day 10 only if not stayed.** If not stayed, Nora acts through separate counsel and invokes where valid. Company counsel does not direct her. 8. **File the preliminary-relief opposition by Day 12.** Do not rely on the broad declaration. Use truthful, limited, admissible evidence. 9. **Produce nonprivileged grand jury records by Day 14.** Meet the subpoena deadline, assert privilege, and do not produce the investigation memorandum. 10. **Do not voluntarily disclose privileged material to either forum.** If a court or government insists, assert privilege and seek a court resolution before producing. 11. **Do not coordinate witness facts.** Separate counsel handles individual advice; company counsel handles entity strategy. 12. **Do not treat a civil protective order as a shield against the grand jury.** Grand jury subpoenas remain effective regardless of civil protective orders. --- ## V. Bottom-line sequence - **Day 1:** Preserve, form independent committee, engage separate counsel, request prosecutor status, begin privilege review. - **Day 2:** Refine collection and privilege logs; meet and confer with civil counsel; decline the memorandum-for-extension offer; draft targeted stay. - **Day 3:** File the targeted civil protective order/stay; continue review; adjust based on any government response. - **Days 4–6:** Finalize civil production; prepare opposition; prepare individuals through separate counsel; seek expedited ruling. - **Day 7:** Produce civil nonprivileged documents and privilege logs. - **Days 8–9:** If stay granted, postpone deposition; if not, prepare for deposition and invocation. - **Day 10:** Nora deposition if not stayed; separate counsel controls invocation; no company coaching. - **Days 11–12:** File opposition to preliminary relief; no overbroad declaration; seek short continuance only if needed for transcript or hearing. - **Day 13:** Finalize grand jury production; assert privilege; make final status request if useful. - **Day 14:** Produce grand jury nonprivileged records; do not produce privileged memorandum; implement civil orders; continue preservation. This sequence allows Bexley to meet both forums’ deadlines, preserve individual Fifth Amendment rights, avoid false civil statements, protect the privileged investigation memorandum, and prevent the board from making waiver decisions that would damage the company or individual witnesses.