Case 1:23-cv-04738-KPF Document 133 Filed 06/28/24 Page 1 of 4

June 28, 2024
Via ECFThe Honorable Katherine Polk Failla, U.S.D.J.
United States District Court, Southern District of New YorkRe:

SEC v. Coinbase, Inc. and Coinbase Global, Inc., 23 Civ. 4738

Dear Judge Failla:
Pursuant to Local Rule 37.2 and Your Honor’s Individual Practices, the SEC respectfully
requests an informal conference and leave to file a motion for a protective order and to quash an
improper subpoena issued by Defendants Coinbase, Inc. and Coinbase Global, Inc. to the Chair of
the SEC, purportedly in his personal capacity (the “Subpoena”). Ex. A. The Subpoena seeks nothingof relevance, imposes an undue burden on the SEC, and strongly disincentivizes public service. It
should be quashed. The SEC met and conferred with Defendants on three occasions regarding the
Subpoena but was unsuccessful in resolving the matter.
I.

Factual and Procedural Background.

The SEC alleges that Defendants violated strict liability provisions of the federal securities
laws through unregistered offerings and by operating as an unregistered broker, exchange, andclearing agency. E.g., Compl. (D.E. 1) ¶ 3. Defendants raised affirmative defenses in their Answer(D.E. 22) (“Ans.”) and Motion for Judgment on the Pleadings (D.E. 36) (“MJOP”). The Court
denied the MJOP in part, rejecting three of those defenses as a basis for judgment on the pleadings
and concluding that “the SEC has satisfied its [Due Process] obligations.” D.E. 105 at 38-39.
On April 23, 2024, Defendants served requests for production of documents on the SEC(“RFPs”). See Ex. B. On June 14, 2024, Defendants notified the SEC of their intent to serve thesupposedly “individual capacity” Subpoena. Ex. A at 3. The RFPs, read together, seek essentially all
SEC documents, from 2017 to the present, that in any way, shape, or form touch upon the crypto
asset markets. The Subpoena seeks from the Chair largely the same thing—all documents about
crypto—for the same period, including the four years before his being sworn in on April 17, 2021.
The Subpoena contains three requests that the RFPs do not. But two mirror a subpoena Defendants
sent to the Massachusetts Institute of Technology, where the Chair previously taught, for documents
such as course syllabi and assignments. See Ex. C (“MIT Subpoena”). The third seeks information
about holdings, if any, of crypto assets. See Ex. A, No. 26. See also Ex. D (comparing the requests).
During the meet-and-confer process the SEC noted that though the Subpoena is styled as
being in the Chair’s individual capacity, it includes the period from 2021 through the present. Ex. A at
10 ¶ 1. Accordingly, many of the Subpoena’s requests seek documents that relate solely to the Chairin his official capacity. E.g., id. at Nos. 3-5, 13, 19 (communications with government officials or
regarding legislation); id. at Nos. 16, 21-22, 24-25 (internal SEC decision-making including as to past
litigations); id. at 23 (draft of Chair statements while serving as Chair); see also Ex. D. These

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Hon. Katherine Polk Failla
June 28, 2024
Page 2

documents belong to the SEC, 17 C.F.R. § 200.30-14(g), not any individual employee. Defendants
can and have made Fed. R. Civ. P. 34 requests for them from the SEC. See Ex. B. To the extent
these documents are appropriately subject to discovery at all—and the SEC believes that most ofthem are not—RFPs to the SEC are the way to seek them. See N’Diaye v. Metro. Life Ins. Co., 2018
WL 2316335, at *9 (S.D.N.Y. May 8, 2018) (granting protective order when Rule 45 subpoena
requested documents from a nonparty that could have been sought from a party); Fed. R. Civ. P.
26(b)(2)(C)(ii) (the court “must limit … discovery” where “the party seeking discovery has had
ample opportunity to obtain the information by discovery in the action.”).
Defendants next stated an interest in documents predating the Chair’s service. In response,
the SEC—without conceding relevance—noted that the Chair’s pre-SEC speeches or interviews are
publicly available, as are his MIT courses and Senate questionnaires detailing his financial holdings.
Defendants then indicated that at a minimum they sought a search of the Chair’s personal emails todetermine if he used them to communicate his views about the federal securities laws and crypto
assets—and even offered to pay for his lawyer. Defendants also asserted that these materials are
relevant to “fair notice” given the Chair’s prominence in the field of crypto assets before he was
Chair, coupled with his later service as Chair. The SEC rejected this position and proposal.
II.

The Subpoena Must Be Quashed and A Protective Order Issued.

The Subpoena should be directed at the SEC. To the extent it is not, it is an improper
intrusion into a public official’s private life, based on his decision to serve. Given also the utter lackof relevance of the requested documents, and the potential chilling effect on public service, theCourt should quash the Subpoena and issue a protective order under Fed. R. Civ. P. 26(b) and 45(d).
A. The Discovery Sought From the Chair in His Individual Capacity is Irrelevant.
“[T]he Due Process Clause requires that agencies bringing an enforcement action ‘provide… a person of ordinary intelligence fair notice’ that the regulated conduct was ‘prohibited.’” D.E.
105 at 35-36. The focus is on “‘the statute itself and other [pertinent] law,’ without reference tosubjective perceptions or individual sensibilities.” Frese v. MacDonald, 512 F. Supp. 3d 273, 292(D.N.H. 2021). Defendants have asserted a litany of complaints about the SEC’s actions andstatements by SEC officials, arguing they deprived Defendants of fair notice. E.g., Ans. ¶¶ 18, 71, 76;
MJOP at 4-5. Surveying Howey and applicable law, and the SEC’s public “written guidance, litigation,and other actions,” the Court has held the SEC had provided fair notice. D.E. 105 at 35-39.
In reaching this conclusion, the Court looked not to individual conduct, but to the law and
the SEC’s official actions. So too did the other courts who considered and rejected some version of
the “fair notice” defense from similarly-situated defendants, including in Zaslavskiy, Kik, LBRY,
Ripple, and Terraform. None of these cases considered or mentioned, let alone relied on theinterpretations of law by a private citizen, which “supports the conclusion that such discovery is not
relevant.” E.g., Citizens Union of N.Y.C. v. Att’y Gen. of N.Y., 269 F. Supp. 3d 124, 143 (S.D.N.Y.
2017). Were this not the law, the private emails of all professors or others with experience
purportedly related to their public duties thereafter would be subject to endless, intrusive discovery.
To the contrary, courts have rejected the fair notice defense as well as discovery requests into
SEC internal and external communications as entirely irrelevant in strict liability registration cases

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Hon. Katherine Polk Failla
June 28, 2024
Page 3

because, as one court put it, “the deliberations within an agency shed[] no light on the application of
the statute.” SEC v. Kik Interactive, Inc., No. 19 Civ. 5244 (AKH) (S.D.N.Y. Nov. 12, 2019) (D.E. 36).
Another commented that in determining the applicability of the fair notice defense it “could careless” about what a prominent official “says when he speaks as a private citizen.” Ex. E at 15-16 (Tr.
of Hr’g in SEC v. LBRY, No. 21 Civ. 260 (PB) (D.N.H. Feb. 23, 2022) (D.E. 50)); see also id. at 29(denying discovery). Cf. SEC v. Terraform Labs, Inc. No. 23 Civ. 1346 (JSR) (S.D.N.Y. July 7, 2023)(denying discovery as to documents about SEC Chair speeches based on privilege).
These principles apply more forcefully here. The SEC’s Chair is not a fact witness. Nor canhe be proffered as a legal expert—that job belongs to the Court. Any individual’s view as to whether
a law applies to a fact pattern, is clear, or has been consistently applied, is simply irrelevant.
B. The Subpoena is Cumulative and Unduly Burdensome.
As noted, the Subpoena is “unreasonably cumulative or duplicative,” Fed. R. Civ. P.
26(b)(2)(C)(i), of the RFPs and the MIT Subpoena. See also Ex. D. But even whittling away at therequests, creating search protocols, or limiting the search to private emails reviewed by a Coinbasehired lawyer does not eliminate the Subpoena’s unjustifiable burden on a high-ranking member of
the SEC, or in any way lessen the Subpoena’s chilling effect on public service.
“High-ranking” government officials “have greater duties and time constraints than other
witnesses” and, if the court did not limit discovery (a deposition in that case), “such officials would
spend an inordinate amount of time tending to pending litigation.” Lederman v. New York City Dep’t ofParks and Recreation, 731 F.3d 199, 203 (2d Cir. 2013) (cleaned up). Fed. R. Civ. P. 26 and 45
accommodate “‘the government’s serious and legitimate concern that its employees not becommandeered into service by private litigants.’” In re Terrorist Attacks on Sept. 11, 2001, 523 F. Supp.
478, 489 (S.D.N.Y. 2021). Without limits, subjecting private citizens to discovery based on theirdecision to serve would be a “‘significant deterrent to qualified candidates for public service’.” In re
Terrorist Attacks on Sept. 11, 2001, 2020 WL 8611024, at *12 (S.D.N.Y. Aug. 27, 2020).
Defendants argue that the Chair’s views in his individual capacity are relevant in part because
he became Chair. This proves too much. Requiring an official to retain personal counsel and subject
his private emails to search by private litigants because of his public role triggers all the concerns
animating Lederman and cases like it. In this context, it is incalculably intrusive and harassing tosearch a citizen’s communications with friends, colleagues, or even the press in his spare time. And
what could possibly be the relevance of reading materials that Prof. Gensler may have assigned oremails he may have sent students? It is hardly surprising that Defendants can point to noenforcement action of a strict liability statute in which a court has endorsed such an unwarranted
intrusion into an official’s personal life. Respectfully, the Court should decline to be the first.
The Court should quash the Subpoena or schedule an informal conference and potentiallyfurther briefing.1
1 The outcome would not change should Defendants broaden their relevancy argument, as none of theirother defenses justify this intrusive discovery request on a private citizen. E.g., D.E. 105 at 31-39 (rejecting
APA and the Major Questions Doctrine as a basis for judgment on the pleadings); Rojas-Reyes v. I.N.S., 235
F.3d 115, 126 (2d Cir. 2000) (rejecting “equitable estoppel” defense); SEC v. Rayat, 2021 WL 4868590 at *2-4
(S.D.N.Y. Oct. 18, 2021) (rejecting “laches” and “unclean hands” defenses).

Case 1:23-cv-04738-KPF Document 133 Filed 06/28/24 Page 4 of 4

Hon. Katherine Polk Failla
June 28, 2024
Page 4

Respec~bmitted,--1L=a\Jorge G. TenreiroCounselfor Plaintiff

CC: All counsel of record (via ECF)

Case 1:23-cv-04738-KPF Document 133-1 Filed 06/28/24 Page 1 of 23

Exhibit A

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Case 1:23-cv-04738-KPF Document 133-1 Filed 06/28/24 Page 3 of 23

Mr. Gary Gensler
June 14, 2024
Page 2
Enclosures:
U.S. District Court Subpoena to Produce Documents
Schedule A

Case 1:23-cv-04738-KPF Document 133-1 Filed 06/28/24 Page 4 of 23
AO 88B (Rev. 12/13) Subpoena to Produce Documents, Information, or Objects or to Permit Inspection of Premises in a Civil Action

UNITED STATES DISTRICT COURT
for theSouthern District of New York
Securities and Exchange Commission
Plaintiffv.
Coinbase, Inc. and Coinbase Global, Inc.
Defendant

)
)
)
)
)
)

Civil Action No. 23 Civ. 4738 (KPF)

SUBPOENA TO PRODUCE DOCUMENTS, INFORMATION, OR OBJECTSOR TO PERMIT INSPECTION OF PREMISES IN A CIVIL ACTION
To:

0U *DU\ *HQVOHU LQGLYLGXDO FDSDFLW\ (Name of person to whom this subpoena is directed)✔
u Production: YOU ARE COMMANDED to produce at the time, date, and place set forth below the following
documents, electronically stored information, or objects, and to permit inspection, copying, testing, or sampling of thematerial: See Schedule A, attached.
Place: $W D ORFDWLRQ PXWXDOO\ DJUHHG XSRQ E\ WKH SDUWLHV RU DW

Date and Time:-XO\ 1   SP (67

7RUUL V /HJDO 6HUYLFHV  :RRGILHOG 5G. 6XLWH $*DLWKHUVEXUJ 0' 

u Inspection of Premises: YOU ARE COMMANDED to permit entry onto the designated premises, land, orother property possessed or controlled by you at the time, date, and location set forth below, so that the requesting party
may inspect, measure, survey, photograph, test, or sample the property or any designated object or operation on it.
Place:

Date and Time:The following provisions of Fed. R. Civ. P. 45 are attached – Rule 45(c), relating to the place of compliance;
Rule 45(d), relating to your protection as a person subject to a subpoena; and Rule 45(e) and (g), relating to your duty torespond to this subpoena and the potential consequences of not doing so.
Date: -XQH  CLERK OF COURT
OR
Signature of Clerk or Deputy Clerk

Attorney’s signature

The name, address, e-mail address, and telephone number of the attorney representing (name of party) Coinbase, Inc. and, who issues or requests this subpoena, are:Coinbase Global, Inc.
William Savitt, Wachtell Lipton Rosen & Katz, 51 W. 52nd St., New York, NY 10019, WDSavitt@wlrk.com(212) 403-1000

Notice to the person who issues or requests this subpoena
A notice and a copy of the subpoena must be served on each party in this case before it is served on the person to whom
it is directed. Fed. R. Civ. P. 45(a)(4).

Case 1:23-cv-04738-KPF Document 133-1 Filed 06/28/24 Page 5 of 23
AO 88B (Rev. 12/13) Subpoena to Produce Documents, Information, or Objects or to Permit Inspection of Premises in a Civil Action (Page 2)

Civil Action No. 23 Civ. 4738 (KPF)
PROOF OF SERVICE(This section should not be filed with the court unless required by Fed. R. Civ. P. 45.)
I received this subpoena for (name of individual and title, if any)on (date).
u I served the subpoena by delivering a copy to the named person as follows:on (date); oru I returned the subpoena unexecuted because:.
Unless the subpoena was issued on behalf of the United States, or one of its officers or agents, I have alsotendered to the witness the fees for one day’s attendance, and the mileage allowed by law, in the amount of$
My fees are $.
for travel and $for services, for a total of $I declare under penalty of perjury that this information is true.

Date:
Server’s signature

Printed name and title

Server’s address

Additional information regarding attempted service, etc.:

0.00

.

Case 1:23-cv-04738-KPF Document 133-1 Filed 06/28/24 Page 6 of 23
AO 88B (Rev. 12/13) Subpoena to Produce Documents, Information, or Objects or to Permit Inspection of Premises in a Civil Action(Page 3)

Federal Rule of Civil Procedure 45 (c), (d), (e), and (g) (Effective 12/1/13)(c) Place of Compliance.
(1) For a Trial, Hearing, or Deposition. A subpoena may command aperson to attend a trial, hearing, or deposition only as follows:(A) within 100 miles of where the person resides, is employed, or
regularly transacts business in person; or(B) within the state where the person resides, is employed, or regularlytransacts business in person, if the person(i) is a party or a party’s officer; or(ii) is commanded to attend a trial and would not incur substantial
expense.

(ii) disclosing an unretained expert’s opinion or information that does
not describe specific occurrences in dispute and results from the expert’s
study that was not requested by a party.
(C) Specifying Conditions as an Alternative. In the circumstances
described in Rule 45(d)(3)(B), the court may, instead of quashing or
modifying a subpoena, order appearance or production under specified
conditions if the serving party:(i) shows a substantial need for the testimony or material that cannot beotherwise met without undue hardship; and(ii) ensures that the subpoenaed person will be reasonably compensated.
(e) Duties in Responding to a Subpoena.

(2) For Other Discovery. A subpoena may command:(A) production of documents, electronically stored information, or
tangible things at a place within 100 miles of where the person resides, isemployed, or regularly transacts business in person; and(B) inspection of premises at the premises to be inspected.
(d) Protecting a Person Subject to a Subpoena; Enforcement.
(1) Avoiding Undue Burden or Expense; Sanctions. A party or attorney
responsible for issuing and serving a subpoena must take reasonable steps
to avoid imposing undue burden or expense on a person subject to thesubpoena. The court for the district where compliance is required must
enforce this duty and impose an appropriate sanction—which may include
lost earnings and reasonable attorney’s fees—on a party or attorney who
fails to comply.
(2) Command to Produce Materials or Permit Inspection.
(A) Appearance Not Required. A person commanded to produce
documents, electronically stored information, or tangible things, or topermit the inspection of premises, need not appear in person at the place of
production or inspection unless also commanded to appear for a deposition,
hearing, or trial.
(B) Objections. A person commanded to produce documents or tangible
things or to permit inspection may serve on the party or attorney designatedin the subpoena a written objection to inspecting, copying, testing, or
sampling any or all of the materials or to inspecting the premises—or to
producing electronically stored information in the form or forms requested.
The objection must be served before the earlier of the time specified forcompliance or 14 days after the subpoena is served. If an objection is made,the following rules apply:(i) At any time, on notice to the commanded person, the serving party
may move the court for the district where compliance is required for an
order compelling production or inspection.
(ii) These acts may be required only as directed in the order, and theorder must protect a person who is neither a party nor a party’s officer fromsignificant expense resulting from compliance.
(3) Quashing or Modifying a Subpoena.
(A) When Required. On timely motion, the court for the district wherecompliance is required must quash or modify a subpoena that:(i) fails to allow a reasonable time to comply;(ii) requires a person to comply beyond the geographical limits
specified in Rule 45(c);(iii) requires disclosure of privileged or other protected matter, if noexception or waiver applies; or(iv) subjects a person to undue burden.
(B) When Permitted. To protect a person subject to or affected by a
subpoena, the court for the district where compliance is required may, on
motion, quash or modify the subpoena if it requires:(i) disclosing a trade secret or other confidential research,development, or commercial information; or(1) Producing Documents or Electronically Stored Information. These
procedures apply to producing documents or electronically stored
information:(A) Documents. A person responding to a subpoena to produce documents
must produce them as they are kept in the ordinary course of business ormust organize and label them to correspond to the categories in the demand.
(B) Form for Producing Electronically Stored Information Not Specified.
If a subpoena does not specify a form for producing electronically stored
information, the person responding must produce it in a form or forms inwhich it is ordinarily maintained or in a reasonably usable form or forms.
(C) Electronically Stored Information Produced in Only One Form. The
person responding need not produce the same electronically stored
information in more than one form.
(D) Inaccessible Electronically Stored Information. The person
responding need not provide discovery of electronically stored informationfrom sources that the person identifies as not reasonably accessible becauseof undue burden or cost. On motion to compel discovery or for a protective
order, the person responding must show that the information is notreasonably accessible because of undue burden or cost. If that showing ismade, the court may nonetheless order discovery from such sources if therequesting party shows good cause, considering the limitations of Rule26(b)(2)(C). The court may specify conditions for the discovery.
(2) Claiming Privilege or Protection.
(A) Information Withheld. A person withholding subpoenaed information
under a claim that it is privileged or subject to protection as trial-preparationmaterial must:(i) expressly make the claim; and(ii) describe the nature of the withheld documents, communications, ortangible things in a manner that, without revealing information itself
privileged or protected, will enable the parties to assess the claim.
(B) Information Produced. If information produced in response to a
subpoena is subject to a claim of privilege or of protection astrial-preparation material, the person making the claim may notify any party
that received the information of the claim and the basis for it. After being
notified, a party must promptly return, sequester, or destroy the specified
information and any copies it has; must not use or disclose the information
until the claim is resolved; must take reasonable steps to retrieve theinformation if the party disclosed it before being notified; and may promptly
present the information under seal to the court for the district wherecompliance is required for a determination of the claim. The person who
produced the information must preserve the information until the claim is
resolved.
(g) Contempt.
The court for the district where compliance is required—and also, after amotion is transferred, the issuing court—may hold in contempt a person
who, having been served, fails without adequate excuse to obey the
subpoena or an order related to it.

For access to subpoena materials, see Fed. R. Civ. P. 45(a) Committee Note (2013).

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SCHEDULE A
This subpoena requires the production of Documents described herein. The Requests areto be responded to in accordance with the following Definitions and Instructions.
DEFINITIONS
1.

“Action” means the above-captioned civil action.

2.

“Coinbase” means Coinbase, Inc., Coinbase Global, Inc., and any of their affiliates,

subsidiaries, divisions, predecessors and successors, and any of their respective officers, directors,
employees, agents, or attorneys.
3.

“Coinbase Platform” means Coinbase’s digital asset spot exchange.

4.

“Coinbase Prime” means the service described in the Coinbase Prime Product

Guide. See Coinbase Prime Product Guide, Coinbase (2022), https://tinyurl.com/mu89cran.
5.

“Coinbase Staking Services” means the services offered to individual Coinbase

users through the “Coinbase Earn” program.
6.

“Communication” or “communications” means the transmittal of information (inthe form of facts, ideas, inquiries, or otherwise), whether orally or in writing, or by any other meansor medium, between or among two or more Persons or entities including but not limited to spoken
words, inquiries, discussions,conversations,conferences,interviews,

negotiations,agreements, reports, meetings, correspondence, letters, electronically transmitted messages (e.g.,email, text messages, instant messaging), postings on Internet bulletin boards, or other forms of
written, verbal or electronic intercourse, however transmitted, ESI (as defined below), anddocuments, as defined herein.
7.

“Complaint” means the Complaint filed in the Action on June 6, 2023.

8.

“Defendants” means Coinbase, Inc. and Coinbase Global, Inc.

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9.

“Digital Asset” means any digital asset, including any cryptocurrency, virtual

currency, or other blockchain-based coin or token.
10.

“Digital Asset Platform” means any exchange or other platform on which Digital

Assets are offered and sold.
11.

“Document” or “documents” shall have the broadest meaning permitted under theFederal Rules of Civil Procedure and shall include, without limitation, the original and all nonidentical copies of any handwritten, printed, typed, recorded, or other graphic material, or ESI (asdefined below), of any kind and nature, including all drafts and transcriptions thereof, however
produced or reproduced, and including but not limited to accounting materials, accounts,
agreements, analyses, appointment books, books of account, calendars, catalogs, checks,
communications (as defined herein), computer data, computer disks, contracts, correspondence,
date books, diaries, diskettes, drawings, email messages, faxes, guidelines, instructions, interoffice communications, invoices, letters, logs, manuals, memoranda, minutes, notes, opinions,payments, plans, purchase confirmations, receipts, records, regulations, reports, sound recordings,
spreadsheets, statements, studies, surveys, tickets, timesheets, trade records, vouchers, word
processing materials (however stored or maintained), and all other means by which information isstored for retrieval in fixed form.
12.

“ESI” means information that is stored in an electronic format, regardless of the media

or whether it is in the original format in which it was created, and that is retrievable in perceivable form
and includes but is not limited to metadata, system data, deleted data, and fragmented data.
13.

“Government Entity” means any federal, state, or foreign agency or authority, or

any current or former officer, employee, or agent thereof. For the avoidance of doubt, Government
Entity includes, but is not limited to, the U.S. Securities and Exchange Commission (“SEC”), U.S.

-2-

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Commodity Futures Trading Commission (“CFTC”), the U.S. Department of Justice, the U.S.
Department of the Treasury, the Financial Crimes Enforcement Network (“FinCEN”), the U.S.
Internal Revenue Service, and the New York Department of Financial Services (“DFS”).
14.

“IEX Group, Inc.” or “Investors’ Exchange LLC” means IEX Group, Inc. or

Investors’ Exchange LLC, as well as any parents, subsidiaries, affiliates, predecessors, successors,
assigns, members, principals, partners, directors, boards, committees, subcommittees, officers,
employees, agents, representatives, consultants, attorneys, or anyone else purporting to act on theirbehalf.
15.

“Investigation” means the investigation(s) of individuals and entities that resulted

in or contributed to the filing of the Complaint, including, but not limited to, the SEC investigation
captioned In the Matter of Coinbase, Inc. (HO-14315).
16.

“Named Digital Assets” means SOL, ADA, MATIC, FIL, SAND, AXS, CHZ,

FLOW, ICP, NEAR, VGX, and DASH.
17.

“Named Coinbase Services” means Coinbase Prime and Coinbase’s Staking

Services.
18.

“Person” means any natural person or individual, or any firm, partnership (generalor limited), limited liability company, proprietorship, corporation, unincorporated association,
trust, joint venture, or any other legal or Governmental Entity, organization, or body of any typewhatsoever, as well as all agents, officers, directors, boards, committees, subcommittees,
employees, consultants, representatives, or instrumentalities thereof.
19.

“Prometheum, Inc.” means Prometheum, Inc., Prometheum Ember ATS Inc.,

Prometheum Capital LLC, as well as any parents, subsidiaries, affiliates, predecessors, successors,
assigns, members, principals, partners, directors, boards, committees, subcommittees, officers,-3-Case 1:23-cv-04738-KPF Document 133-1 Filed 06/28/24 Page 10 of 23

employees, agents, representatives, consultants, attorneys, or anyone else purporting to act on theirbehalf.
20.

“Securitize, Inc.,” “Securitize LLC,” or “Securitize Markets, LLC” means

Securitize, Inc., Securitize LLC, or Securitize Markets, LLC, as well as any parents, subsidiaries,
affiliates, predecessors, successors, assigns, members, principals, partners, directors, boards,
committees, subcommittees, officers, employees, agents, representatives, consultants, attorneys,or anyone else purporting to act on their behalf.
21.

“SEC” means the U.S. Securities and Exchange Commission, including any

Divisions, Commissioners, Commission Staff, employees, subsidiaries, or individuals or entities
acting on their behalf.
22.

“Staking” means the proof of stake consensus mechanism used by certain

blockchain protocols to validate, verify, and secure transactions on a blockchain.
23.

“Staking as a Service” means services offered to individuals to facilitate the stakingof their digital assets to a blockchain with a proof-of-stake consensus mechanism.
24.

The terms “concerning,” “regarding,” “with regard to,” “relating to,” and “referring

to” shall be read and applied as interchangeable and shall be construed in the broadest sense
permitted to mean discussing, supporting, describing, concerning, regarding, with regard to,relating to, referring to, pertaining to, containing, analyzing, evaluating, studying, recording,memorializing, reporting on, commenting on, reviewed in connection or in conjunction with,evidencing, setting forth, contradicting, refuting, considering, recommending, or constituting, inwhole or in part.
25.

The language of the Requests shall be read liberally, so as to be inclusive rather

than exclusive, and in particular: (i) the use of the singular shall be deemed to include the plural-4-

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and vice versa, and the use of one gender shall include the other; (ii) the terms “and” as well as“or” shall be construed disjunctively or conjunctively as necessary to bring within the scope ofa Request all documents that might otherwise be construed as outside its scope; (iii) the present
tense includes the past and future tenses, and vice versa; (iv) the terms “any” or “all” shall mean
“any and all,” “each and every,” and “anyone and everyone”; and (v) “include,” “includes,” and“including” shall mean “including but not limited to.”
INSTRUCTIONSDefendants request that you produce, wherever located, all documents described belowthat are in your possession, custody, or control, wherever located, regardless of whether they arepossessed directly by you or any of your agents, representatives, employees, accountants,
attorneys, or other persons acting or purporting to act on Your behalf.
1.

Unless otherwise specified, the time period for these Requests is January 1, 2017

through the present.
2.

Responsive Documents shall be produced in image format, with searchable text

load files that are compatible with standard litigation support software, including Relativity,
Concordance, and IPRO. The images shall be black and white, single‐page, 300 DPI, Group IV.tiff images. Images for documents created with office or personal productivity software (e.g.,
wordprocessing documents, spreadsheets, presentations, databases, charts, and graphs) shall
include tracked changes, comments, hidden rows, columns or worksheets, speakers notes, and anyother similar content that can be made visible within the application. The load file shall include
for each Document, the metadata fields listed below. For any Documents that have been globallyde‐duplicated, the custodian field shall reflect all custodians who had a copy of the Document
during processing and before de‐duplication. For each individual Document based on an electronic-5-Case 1:23-cv-04738-KPF Document 133-1 Filed 06/28/24 Page 12 of 23

file, the load file shall, unless such Document contains redactions, contain the path to thecorresponding text that is extracted from the electronic file. Documents produced in redacted formshall contain text generated by optical character recognition (“OCR”) of the redacted image(s). In
addition to the foregoing, for all email, the load file shall also include, to the extent practicable,
header information including: (1) the individual(s) to whom the communication was directed(“To”); (2) the author of the e‐mail communication (“From”); (3) all individuals who were copied(“cc”) and/or blind copied (“bcc”) on the communication; (4) the subject line of the communication(“Re” or “Subject”); and (5) the date and time sent. For each Document, the load file shall also
contain: (1) the beginning Bates number (referring to the first page of the Document); (2) the
ending Bates number (referring to the last page of the Document); and in the case of Documentswith attachments; (3) the beginning attachment range number(s); and (4) the ending attachment
range number(s), where the “attachment range” records the relationship of Documents to their
attachments. The attachment range should be recorded from the first page of the first Documentin the attachment range, to the last page of the last Document in the attachment range. In addition,
all spreadsheet, presentation, audio, and audiovisual Documents that do not require redaction shallbe produced in native format with a single‐page placeholder (Group IV .tiff image) indicating thatthe file is being produced in native format. The right to demand production of any other responsive
Documents in their native format (including all metadata) is expressly reserved.
3.

A Request for a document shall be deemed to include a request for all transmittal

sheets, cover letters, exhibits, enclosures, attachments, or other matters affixed to the document,in addition to the document itself.
4.

Each Request seeks production of each document in its entirety withoutabbreviations, redaction, or expurgation.

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Case 1:23-cv-04738-KPF Document 133-1 Filed 06/28/24 Page 13 of 23

5.

Responsive documents and communications are to be designated clearly so as toreflect their owner and/or custodian. Any document not produced in electronic format is to be
produced in its original file folder, with all labels or similar markings intact and included, and with
the name of the Person from whose file it was produced.
6.

Electronically stored information, or “ESI,” shall be produced in the form or forms

in which it is ordinarily maintained or in a form that is reasonably usable. Specifically, where thedocuments responsive to a Request are stored electronically, any responsive e-mails, Word
documents, and other unstructured data are to be produced in TIFF plus metadata plus extracted
text format. Any responsive Excel charts, PowerPoints, databases, and other structured data areto be produced in native format. The right to demand production of any other responsive
documents in their native format (including all available metadata) is expressly reserved.
7.

Each Request herein requires that You produce files from all reasonably accessible

sources of information in or on which You store or maintain potentially responsive documents.
8.

Draft or non-identical copies are to be considered separate documents for purposesof these Requests. Any and all drafts and copies of each document that are responsive to any
Request for documents shall be produced, as shall all copies of such documents that are not
identical in any respect, including, but not limited to, copies containing handwritten notes,
markings, stamps, or interlineations, whether or not the original of such document is within Your
possession, custody, or control. The author(s) of all handwritten notes should be identified.
9.

You shall construe each Request independently and not with reference to any other

Request for purposes of limitation.
10.

The use of the term “the” shall not be construed as limiting the scope of any

Request.

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Case 1:23-cv-04738-KPF Document 133-1 Filed 06/28/24 Page 14 of 23

11.

If it is not possible to produce any document called for by a Request, or if any partof a Request is objected to, the reasons for the failure to produce the documents or the objection
should be stated specifically as to all grounds. If there are no documents or communications
responsive to any particular Request or subpart thereof, You shall state so in writing.
12.

If You claim any form of privilege or protection or other reason as a ground forwithholding from production requested documents, You shall furnish a privilege log in compliancewith Federal Rule of Civil Procedure 45(e)(2) and any other parameters agreed between You andDefendants.
13.

If You contend that any Request is overly broad and/or unduly burdensome,

identify all aspects of the Request that are overly broad or unduly burdensome and produce thedocuments and communications that are not subject to this contention.
14.

These Requests are continuing in nature, and any document obtained or locatedafter the production pursuant hereto, which would have been produced had it been available or its
existence known at the time, is to be supplied promptly by way of a supplemental production.
15.

Defendants serve these Requests without prejudice to their right to serve additional

Requests for the production of documents.

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Case 1:23-cv-04738-KPF Document 133-1 Filed 06/28/24 Page 15 of 23

REQUESTS FOR PRODUCTION OF DOCUMENTS
REQUEST NO. 1.
All Documents and Communications concerning Coinbase, the Coinbase Platform, theNamed Digital Assets, the Named Coinbase Services, or the subject matter of the Investigation or
the Action, including all Communications with any Person or entity not party to this Action
concerning the foregoing.
REQUEST NO. 2.
Documents and/or Communications sufficient to establish when you first learned of the
Coinbase Platform, the Named Digital Assets, and the Named Coinbase Services, and when you
first learned that each of the Named Digital Assets had been listed or was planned to be listed on
the Coinbase Platform, without limitation as to the applicable time period.
REQUEST NO. 3.
All Communications with, and Documents concerning Communications with, third
parties (including any Government Entity) concerning the application of federal laws,
regulations, or rules (including, but not limited to, the Securities Act of 1933 and the Securities
Exchange Act of 1934) to Digital Assets, Digital Asset Platforms, or Staking as a Service.
REQUEST NO. 4.
All Communications and Documents concerning any investigation by a Government Entity
concerning Digital Assets, Digital Asset Platforms, or Staking as a Service.
REQUEST NO. 5.
All Communications with, and Documents concerning Communications with, theFinancial Industry Regulatory Authority (FINRA) or any Government Entity, including the SEC,
or the CFTC, relating to the allegations in the Complaint, the Investigation, Digital Assets, Digital
Asset Platforms, or Staking as a Service.

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REQUEST NO. 6.
All Communications with, and Documents concerning Communications with, journalists
or other employees or affiliates of news or media organizations concerning Coinbase, this Action,
the Investigation, Digital Assets, Digital Asset Platforms, or Staking as a Service.
REQUEST NO. 7.
All Communications with, and Documents concerning Communications with, any allegeddevelopers of, alleged issuers of, or Persons otherwise affiliated with any Digital Assets or theirassociated blockchain networks, including any Documents or information provided to you by any
alleged developers of, alleged issuers of, or Persons otherwise affiliated with any Digital Assets,
their affiliated blockchain networks, or their counsel.
REQUEST NO. 8.
All Documents and Communications concerning any discussions, instructions, advice,inquiries or other Communications between you and any Person concerning that Person’s actual,planned, or potential business or other relationship with Coinbase or with a developer of or Person
otherwise affiliated with Digital Assets, Digital Asset Platforms, or Staking as a Service.
REQUEST NO. 9.
All Communications with, and Documents concerning Communications with,
Prometheum, Inc., Martin Kaplan, Aaron Kaplan, or Benjamin Kaplan; Securitize, Inc.;
Securitize LLC; or Securitize Markets, LLC.
REQUEST NO. 10.
All Communications with, and Documents concerning Communications with, IEX Group,
Inc. or Investors’ Exchange LLC concerning Coinbase, Digital Assets, or Digital Asset Platforms.
REQUEST NO. 11.
All Communications with, and Documents concerning Communications with, any Person-10-Case 1:23-cv-04738-KPF Document 133-1 Filed 06/28/24 Page 17 of 23

concerning (i) any actual, planned, or potential registration by that Person as an exchange, broker,
dealer, clearing agency, alternative trading system, or custodian that would or could facilitate theoffer, sale, or custody of Digital Assets or any product or service relating to Digital Assets,
including but not limited to the means or viability of such registration; or (ii) the registration with
the SEC of any exchange-traded product that holds or references Digital Assets.
REQUEST NO. 12.
All Documents and Communications concerning (i) Report of Investigation Pursuant to
Section 21(a) of the Securities Exchange Act of 1934: The DAO, Exchange Act Release No.
81207 (July 25, 2017), (ii) the June 14, 2018 speech by former SEC Director of the Division of
Corporation Finance William Hinman titled “Digital Asset Transactions: When Howey Met Gary
(Plastic)” (“Hinman Speech”), or (iii) FinHub’s April 2019 “Framework for ‘Investment
Contract’ Analysis of Digital Assets.”
REQUEST NO. 13.
All Documents and Communications concerning any public statements by FINRA or any
Government Agency, including but not limited to the SEC and CFTC, concerning Digital Assets,
Digital Asset Platforms, Staking, or Staking as a Service.
REQUEST NO. 14.
All Documents and Communications concerning whether Digital Assets or transactions
in Digital Assets are “investment contract[s]” within the meaning of the Securities Act of 1933or the Securities Exchange Act of 1934, including Documents and Communications concerning
the application of SEC v. W.J. Howey Co., 328 U.S. 293 (1946), to Digital Assets or transactions
in Digital Assets.
REQUEST NO. 15.
All Documents and Communications concerning (i) the role of a Digital Asset’s-11-Case 1:23-cv-04738-KPF Document 133-1 Filed 06/28/24 Page 18 of 23

ecosystem in the application of the federal securities laws, including but not limited todetermining whether transactions in an asset constitute transactions in investment contracts orother securities or (ii) the ecosystems of the Named Digital Assets, including, but not limited to,the components of such ecosystems, the identities of the alleged developers, issuers, andpromoters affiliated with such ecosystems.
REQUEST NO. 16.
All Documents and Communications relating to the SEC’s assertion during Oral
Argument that when someone “purchases tokens like [the Named Digital Assets], like these 13
examples . . . they are investing into the network behind it”—that is, “the ecosystem.” See Jan.
17, 2024 Hr’g Tr. at 21:20-22:5; see also id. at 57:17-21.
REQUEST NO. 17.
All Documents and Communications relating to Bitcoin’s ecosystem or lack thereof.
REQUEST NO. 18.
All Documents and Communications concerning the size, value, growth, or importance of
the Digital Asset industry or Digital Asset Platforms.
REQUEST NO. 19.
All Documents and Communications concerning potential or proposed legislation relating
to the regulatory and/or enforcement authorities of the SEC and/or another Government Entitywith respect to Digital Assets or Digital Asset Platforms.
REQUEST NO. 20.
All Documents and Communications concerning any meeting or call involving one ormore Commissioner concerning Coinbase, the Coinbase Platform or any of the Named Digital
Assets or Named Coinbase Services, including a list of the attendees of any such meeting or call.

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Case 1:23-cv-04738-KPF Document 133-1 Filed 06/28/24 Page 19 of 23

REQUEST NO. 21.
All Documents and Communications concerning the following litigation matters:
a. SEC v. Kik Interactive Inc., Case No. 19-cv-5244 (S.D.N.Y.);b. SEC v. Telegram Grp. Inc. and TON Issuer Inc., Case No. 19-cv-9439 (S.D.N.Y.);
c. SEC v. Ripple Labs, Inc. et al., Case No. 20-cv-10832 (S.D.N.Y.);
d. SEC v. LBRY, Inc., Case No. 21-cv-260 (D.N.H.);
e. SEC v. Wahi et al., Case No. 2:22-cv-1009 (W.D. Wash.);f. SEC v. Binance Holdings Ltd. et al., Case No. 23-cv-1599 (D.D.C.);
g. SEC v. Bittrex, Inc. et al., Case No. 23-cv-580 (W.D. Wash.);h. SEC v. Genesis Global Capital, LLC and Gemini Tr. Co., LLC,
Case No. 23-cv-287 (S.D.N.Y.);
i. SEC v. Terraform Labs PTE Ltd. and Kwon, Case No. 23-cv-1346 (S.D.N.Y.);
j. SECv.
Payward,Inc.
andCase No. 23-cv-6003 (N.D. Cal.); andPaywardVentures,Inc.,k. SEC v. Payward Ventures, Inc. (D/B/A Kraken) and Payward Trading, Ltd. (D/B/A
Kraken), Case No. 23-cv-588 (N.D. Cal.).
REQUEST NO. 22.
All Documents and Communications concerning Coinbase’s direct public offering or
registration statement on Form S-1 (including any drafts of such registration statement),
including but not limited to Documents and Communications concerning the application or
potential application of the federal securities laws to Coinbase’s business or operations.
REQUEST NO. 23.
All Documents and Communications concerning your public remarks about Digital
Assets, Digital Asset Platforms, and Staking as a Service, without limitation as to theapplicable time period, including but not limited to:-13-

Case 1:23-cv-04738-KPF Document 133-1 Filed 06/28/24 Page 20 of 23

a. Your May 6, 2021 testimony before the United States House Committee on
Financial Services;b. Your May 7, 2021 appearance on CNBC;
c. Your May 26, 2021 testimony before the United States House Subcommittee on
Financial Services and General Government;
d. Your August 3, 2021 remarks before the Aspen Security Forum;e. Your September 21, 2021 interview with the Washington Post;
f. Your October 5, 2021 testimony before the United States House Committee on
Financial Services;g. Your August 19, 2022 opinion piece published by the Wall Street Journal, titled“The SEC Treats Crypto Like the Rest of the Capital Markets”;
h. Your December 7, 2022 interview with Yahoo! Finance;i. Your interview with Ankush Khardori, as reported in Intelligencer’s February 23,
2023 article, “Can Gary Gensler Survive Crypto Winter? D.C.’s Top Financial Cop
on Bankman-Fried Blowback”;
j. Your interview with CNBC’s Squawk Box, as reported in CNBC’s February 10,2023 article, “SEC’s Gary Gensler on Kraken Staking Settlement: Other Crypto
Platforms Should take Note of This”;
k. Your March 29, 2023 testimony before the United States House Appropriations
Subcommittee on Financial Services and General Government;l.

Your statements regarding Digital Assets during “Office Hours with Gary Gensler”
including but not limited to the episodes from August 16, 2021, July 28, 2022,
August 4, 2022, October 3, 2022, February 9, 2023, and April 27, 2023;

m. Your April 18, 2023 testimony before the United States House Committee on

Financial Services;n. Your interview with CNBC’s Squawk Box, as reported in CNBC’s June 6, 2023

article, “SEC Chair Gensler doubts the need for more digital currency”;
o. Your interview with the Wall Street Journal, as reported in the June 8, 2023 article,“SEC’s Gary Gensler Had Crypto in His Sights for Years. Now He’s Suing Binanceand Coinbase.”;p. Your June 8, 2023 remarks before the Piper Sandler Global Exchange & Fintech

Conference;-14-

Case 1:23-cv-04738-KPF Document 133-1 Filed 06/28/24 Page 21 of 23

q. Your interview with the Wall Street Journal, as broadcast in the June 14, 2023

podcast episode, “SEC Chair Gary Gensler on His Crypto Crackdown”;
r.

Your September 12, 2023 testimony before the United States Senate Committee on
Banking, Housing, and Urban Affairs;s.

Your September 27, 2023 testimony before the United States House Committee on
Financial Services; andt. Your statements concerning Digital Assets or Digital Asset Platforms made prior
to your tenure as SEC Chair.
REQUEST NO. 24.
All Documents and Communications concerning the Petition for Rulemaking submitted
by Coinbase on July 21, 2022, any comment letters submitted by Coinbase concerning its Petition
for Rulemaking, or the Commission’s Order denying Coinbase’s Petition for Rulemaking issued
on December 15, 2023, including any Communications with any third parties (including any
Government Entity) concerning Coinbase’s Petition for Rulemaking or the Commission’s Order.
REQUEST NO. 25.
All Documents and Communications concerning the comment letter sent to Coinbase
Global, Inc. by the Commission dated September 22, 2023 regarding Coinbase Global, Inc.’s
Form 10-K for the year ended December 31, 2022, Form 10-Q for the period ended June 30,
2023, Form 8-K filed January 10, 2023, and Form 8-K filed May 4, 2023 (File No. 001-40289)
and any subsequent correspondence relating thereto.
REQUEST NO. 26.
All Documents and Communications concerning your purchase, use, ownership, ortrading of Digital Assets or use of Digital Asset Platforms.
REQUEST NO. 27.
All Documents and Communications concerning your courses “FinTech: Shaping the
Financial World” and “Blockchain and Money,” including but not limited to syllabi, speaking-15-Case 1:23-cv-04738-KPF Document 133-1 Filed 06/28/24 Page 22 of 23

notes, presentations, distributed materials, assignments, and any classroom recordings.
REQUEST NO. 28.
All Documents and Communications concerning your work with the Massachusetts
Institute of Technology’s Digital Currency Initiative, including any speeches, publications, orreports concerning Digital Assets, Digital Asset Platforms, Staking, or Staking as a Service.

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Case 1:23-cv-04738-KPF Document 133-1 Filed 06/28/24 Page 23 of 23

Dated: June 14, 2024
New York, New YorkWACHTELL, LIPTON, ROSEN & KATZ
/s/ William Savitt
William Savitt
Kevin S. Schwartz
Sarah K. Eddy
Adam M. Gogolak
David P.T. Webb
Emily R. Barreca
51 West 52nd Street
New York, New York 10019(212) 403-1000
WDSavitt@wlrk.com
KSSchwartz@wlrk.com
SKEddy@wlrk.com
AMGogolak@wlrk.com
DPTWebb@wlrk.com
ERBarreca@wlrk.com
Steven R. Peikin
Kathleen S. McArthur
James M. McDonald
Julia A. Malkina
Olivia G. Chalos
SULLIVAN & CROMWELL LLP
125 Broad Street
New York, New York 10004-2498(212) 558-4000
Attorneys for Coinbase, Inc. and Coinbase Global,
Inc.

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Case 1:23-cv-04738-KPF Document 133-2 Filed 06/28/24 Page 1 of 24

Exhibit B

Case 1:23-cv-04738-KPF Document 133-2 Filed 06/28/24 Page 2 of 24

UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORKSECURITIES AND EXCHANGE COMMISSION,
Plaintiff,
23 Civ. 4738 (KPF)

v.
COINBASE, INC. AND COINBASE GLOBAL, INC.,
Defendants.

DEFENDANTS’ FIRST REQUEST FOR PRODUCTION OF DOCUMENTS
DIRECTED TO PLAINTIFF SECURITIES AND EXCHANGE COMMISSION
Pursuant to Rules 26 and 34 of the Federal Rules of Civil Procedure, and the definitions
and instructions set forth below, Defendants Coinbase, Inc. and Coinbase Global, Inc. (together,“Coinbase” or “Defendants”), by and through their undersigned counsel, hereby request that
Plaintiff the Securities and Exchange Commission (the “SEC,” “Commission,” or “Plaintiff”)
produce documents responsive to the following requests, within 30 days from the date of service,at the offices of Wachtell, Lipton, Rosen & Katz, 51 West 52nd Street, New York, New York
10019, or at such other time and place as may be agreed among counsel or ordered by the Court.
DEFINITIONS
The following definitions shall apply to the Defendants’ First Request for Production ofDocuments Directed to Plaintiff the Securities and Exchange Commission (the “Requests”):
1.

“Action” means the above-captioned civil action.

2.

“BlackRock, Inc.” means BlackRock, Inc., as well as any parents, subsidiaries,

affiliates, predecessors, successors, assigns, members, principals, partners, directors, boards,
committees, subcommittees, officers, employees, agents, representatives, consultants, attorneys,or anyone else purporting to act on its behalf.

Case 1:23-cv-04738-KPF Document 133-2 Filed 06/28/24 Page 3 of 24

3.

“Coinbase” means Coinbase, Inc., Coinbase Global, Inc., and any of their affiliates,

subsidiaries, divisions, predecessors and successors, and any of their respective officers, directors,
employees, agents, or attorneys.
4.

“Coinbase Platform” means Coinbase’s digital asset spot exchange.

5.

“Coinbase Prime” means the service described in the Coinbase Prime Product

Guide. See Coinbase Prime Product Guide, Coinbase (2022), https://tinyurl.com/mu89cran.
6.

“Communication” or “communications” means the transmittal of information (inthe form of facts, ideas, inquiries, or otherwise), whether orally or in writing, or by any other meansor medium, between or among two or more Persons or entities including but not limited to spoken
words, inquiries, discussions,conversations,conferences,interviews,

negotiations,agreements, reports, meetings, correspondence, letters, electronically transmitted messages (e.g.,email, text messages, instant messaging), postings on Internet bulletin boards, or other forms of
written, verbal or electronic intercourse, however transmitted, ESI (as defined below), anddocuments, as defined herein.
7.

“Complaint” means the Complaint filed in the Action on June 6, 2023, and/or any

subsequent amendments.
8.

“Contact List” has the meaning assigned to this term in Section 3.2.9.4 of the SEC

Enforcement Manual.
9.

“Digital Asset” means any digital asset, including any cryptocurrency, virtual

currency, or other blockchain-based coin or token.
10.

“Digital Asset Platform” means any exchange or other platform on which Digital

Assets are offered and sold.

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Case 1:23-cv-04738-KPF Document 133-2 Filed 06/28/24 Page 4 of 24

11.

“Document” or “documents” shall have the broadest meaning permitted under theFederal Rules of Civil Procedure and shall include, without limitation, the original and all nonidentical copies of any handwritten, printed, typed, recorded, or other graphic material, or ESI (asdefined below), of any kind and nature, including all drafts and transcriptions thereof, however
produced or reproduced, and including but not limited to accounting materials, accounts,
agreements, analyses, appointment books, books of account, calendars, catalogs, checks,
communications (as defined herein), computer data, computer disks, contracts, correspondence,
date books, diaries, diskettes, drawings, email messages, faxes, guidelines, instructions, interoffice communications, invoices, letters, logs, manuals, memoranda, minutes, notes, opinions,payments, plans, purchase confirmations, receipts, records, regulations, reports, sound recordings,
spreadsheets, statements, studies, surveys, tickets, timesheets, trade records, vouchers, word
processing materials (however stored or maintained), and all other means by which information isstored for retrieval in fixed form.
12.

“Document Index” has the meaning assigned to this term in Section 3.2.9.4 of the

SEC Enforcement Manual.
13.

“ESI” means information that is stored in an electronic format, regardless of themedia or whether it is in the original format in which it was created, and that is retrievable inperceivable form and includes but is not limited to metadata, system data, deleted data, andfragmented data.
14.

“Government Entity” means any federal, state, or foreign agency or authority, or

any current or former officer, employee, or agent thereof. For the avoidance of doubt, Government
Entity includes, but is not limited to, the U.S. Commodity Futures Trading Commission (“CFTC”),
the U.S. Department of Justice, the U.S. Department of the Treasury, the Financial Crimes-3-Case 1:23-cv-04738-KPF Document 133-2 Filed 06/28/24 Page 5 of 24

Enforcement Network (“FinCEN”), the U.S. Internal Revenue Service, and the New York
Department of Financial Services (“DFS”).
15.

“IEX Group, Inc.” or “Investors’ Exchange LLC” means IEX Group, Inc. or

Investors’ Exchange LLC, as well as any parents, subsidiaries, affiliates, predecessors, successors,
assigns, members, principals, partners, directors, boards, committees, subcommittees, officers,
employees, agents, representatives, consultants, attorneys, or anyone else purporting to act on theirbehalf.
16.

“Investigation” means the investigation(s) of individuals and entities that resulted

in or contributed to the filing of the Complaint, including but not limited to the SEC investigation
captioned In the Matter of Coinbase, Inc. (HO-14315).
17.

“Named Coinbase Services” means Coinbase Prime and Coinbase’s Staking

Services.
18.

“Named Digital Assets” means SOL, ADA, MATIC, FIL, SAND, AXS, CHZ,

FLOW, ICP, NEAR, VGX, and DASH.
19.

“Oral Argument” means the parties’ January 17, 2024 oral argument before the

Honorable Katherine Polk Failla on Coinbase’s Motion for Judgment on the Pleadings.
20.

“Person” means any natural person or individual, or any firm, partnership (generalor limited), limited liability company, proprietorship, corporation, unincorporated association,
trust, joint venture, or any other legal or governmental entity, organization, or body of any typewhatsoever, as well as all agents, officers, directors, boards, committees, subcommittees,
employees, consultants, representatives, or instrumentalities thereof.

-4-

Case 1:23-cv-04738-KPF Document 133-2 Filed 06/28/24 Page 6 of 24

21.

“Plaintiff,” “SEC,” “Commission,” “you,” or “your” means the U.S. Securities andExchange Commission, including any Divisions, Commissioners, Commission Staff, employees,
subsidiaries, or individuals or entities acting on its behalf.
22.

“Prometheum, Inc.” means Prometheum, Inc., Prometheum Ember ATS Inc., or

Prometheum Capital LLC, as well as any parents, subsidiaries, affiliates, predecessors, successors,
assigns, members, principals, partners, directors, boards, committees, subcommittees, officers,
employees, agents, representatives, consultants, attorneys, or anyone else purporting to act on theirbehalf.
23.

“Securitize, Inc.,” “Securitize LLC,” or “Securitize Markets, LLC” means

Securitize, Inc., Securitize LLC, or Securitize Markets, LLC, as well as any parents, subsidiaries,
affiliates, predecessors, successors, assigns, members, principals, partners, directors, boards,
committees, subcommittees, officers, employees, agents, representatives, consultants, attorneys,or anyone else purporting to act on their behalf.
24.

“Staking as a Service” means services offered to individuals to facilitate the stakingof their digital assets to a blockchain with a proof-of-stake consensus mechanism.
25.

“Staking Services” means the services offered to individual Coinbase users throughthe “Coinbase Earn” program.
26.

“Valkyrie Investments Inc.,” “Valkyrie Digital Assets LLC,” or “Valkyrie Funds

LLC” means Valkyrie Investments Inc., Valkyrie Digital Assets LLC, or Valkyrie Funds LLC, aswell as any parents, subsidiaries, affiliates, predecessors, successors, assigns, members, principals,
partners,

directors,

boards,committees,

subcommittees,

officers,

employees,

representatives, consultants, attorneys, or anyone else purporting to act on their behalf.

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agents,Case 1:23-cv-04738-KPF Document 133-2 Filed 06/28/24 Page 7 of 24

27.

The terms “concerning,” “regarding,” “with regard to,” “relating to,” and “referring

to” shall be read and applied as interchangeable and shall be construed in the broadest sense
permitted, including by Local Civil Rule 26.3, to mean discussing, supporting, describing,concerning, regarding, with regard to, relating to, referring to, pertaining to, containing, analyzing,evaluating, studying, recording, memorializing, reporting on, commenting on, reviewed inconnection or in conjunction with, evidencing, setting forth, contradicting, refuting, considering,recommending, or constituting, in whole or in part.
28.

The language of the Requests shall be read liberally, so as to be inclusive rather

than exclusive, and in particular: (i) the use of the singular shall be deemed to include the pluraland vice versa, and the use of one gender shall include the other; (ii) the terms “and” as well as“or” shall be construed disjunctively or conjunctively as necessary to bring within the scope ofa Request all documents that might otherwise be construed as outside its scope; (iii) the present
tense includes the past and future tenses, and vice versa; (iv) the terms “any” or “all” shall mean
“any and all,” “each and every,” and “anyone and everyone”; and (v) “include,” “includes,” and“including” shall mean “including but not limited to.”
INSTRUCTIONS
The following instructions shall apply to the Requests contained herein. The Requests callfor the production of all responsive documents that are in your possession, custody, or control,
wherever located, regardless of whether they are possessed directly by you or any of your agents,
representatives, employees, accountants, attorneys, or other persons acting or purporting to act on
your behalf.
1.

Unless otherwise specified, the time period for these Requests is January 1, 2017

through June 6, 2023.

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Case 1:23-cv-04738-KPF Document 133-2 Filed 06/28/24 Page 8 of 24

2.

A Request for a document shall be deemed to include a request for any non-identical copies or drafts of the document, as well as all transmittal sheets, cover letters, exhibits,
enclosures or attachments to the document, in addition to the document itself. Any document not
produced in electronic format is to be produced in its original file folder, with all labels or similar
markings intact and included, and with the name of the Person from whose file it was produced.
3.

If it is not possible to produce any document called for by a Request, or if any partof a Request is objected to, the reasons for the failure to produce the documents or the objection
should be stated specifically as to all grounds.
4.

If any portion of any document or communication is responsive to any Request, theentire document must be produced.
5.

You must respond to each Request separately and fully, unless it is objected to, in

which event the reasons for the objection should be specifically and separately stated. If you object
to part of a Request, you must produce all documents and communications responsive to the partof the Request to which you did not object.
6.

If you claim any form of privilege or protection or other reason, whether based on

statute or otherwise, as a ground for not producing requested documents, you shall furnish a
privilege log identifying each document or communication for which the privilege or protection isclaimed in compliance with Federal Rule of Civil Procedure 26(b)(5), and/or such other parameters
as may be agreed between the parties.
7.

Requests are not intended to limit or modify other Requests and should not beinterpreted as limiting or modifying other Requests.

-7-Case 1:23-cv-04738-KPF Document 133-2 Filed 06/28/24 Page 9 of 24

8.

If you contend that any Request is overly broad and/or unduly burdensome, identify

all aspects of the Request that are overly broad or unduly burdensome and produce the documents
and communications that are not subject to this contention.
9.

If there are no documents or communications responsive to any particular Requestor subpart thereof, you shall state so in writing.
10.

If any document or communication responsive to any Request has been destroyed

or lost, you shall notify Defendants of that fact and shall thereafter meet and confer withDefendants regarding the information to be provided with respect to such documents andcommunications.
11.

Any responsive documents or communications shall be produced in accordancewith any confidentiality or protective order and any order concerning forms and format for
document productions entered by the Court in this Action.
12.

These Requests are continuing and require further and supplemental production by

you whenever you locate, acquire, or create additional responsive documents or communications
between the time of the initial production hereunder and the time of the trial in this Action.
13.

Pursuant to Rule 26(e) of the Federal Rules of Civil Procedure, you are instructedto promptly amend your responses to the Requests if you obtain information on the basis of which:(i) you know that the response was incorrect when made; or (ii) you know that the response, thoughcorrect when made, is no longer true, and failure to amend the response would be, in substance, aknowing concealment.
14.

Defendants serve these Requests without prejudice to their right to serve additionalrequests for the production of documents.

-8-

Case 1:23-cv-04738-KPF Document 133-2 Filed 06/28/24 Page 10 of 24

REQUESTS FOR PRODUCTION OF DOCUMENTS
REQUEST NO. 1.
Your complete investigative file in connection with the Investigation, including but notlimited to the following:a. All subpoenas, voluntary document requests, and other requests to provide
documents, testimony, or an interview, including Documents concerning theterms of any testimony or interview (including proffer agreements) of any Personor entity from whom you gathered information in connection with theInvestigation;b. All Documents received in response to any such requests, or otherwise obtainedby you from third parties or third-party sources;c. All transcripts, transcript exhibits, recorded testimony, verbatim notes,
declarations, affidavits, witness interview notes, and memos and witness
statements;
d. All Documents concerning any internal or external Communications concerning
the Investigation. As examples, but without limitation, this category includes allcorrespondence (including email), cover letters, subpoenas, witness statements,
declarations, affidavits, memoranda, summaries, or notes, and any drafts andversions of the foregoing, sent to, or received from, any witness, potential witness,
entities, or their counsel. For the avoidance of doubt, this Request includes theformal order memorandum, the action memorandum, and emails and othercommunications between the staff of the Enforcement Division and SEC
Commissioners or other SEC Divisions and their respective staff;
e. All Documents memorializing, evidencing, or concerning any Communications-9-Case 1:23-cv-04738-KPF Document 133-2 Filed 06/28/24 Page 11 of 24

you had with any Government Entity and/or any other third party relating to theInvestigation, including but not limited to any written submissions orpresentations made by third parties;
f. All Documents or Communications concerning a cooperation agreement between
you and any Person or entity from whom you gathered information in connection
with the Investigation; andg. Your Contact List and Document Index for the Investigation, as contemplated in
Section 3.2.9.4 of the SEC Enforcement Manual.
REQUEST NO. 2.
All Documents and Communications concerning the Coinbase Platform, the Named
Digital Assets, the Named Coinbase Services, or the subject matter of the Investigation or the
Action, including all Communications with any Person or entity not party to this Action concerning
the foregoing and any formal, informal, or voluntary requests by you for documents or informationfrom any Person concerning the Coinbase Platform, the Named Digital Assets, the Named
Coinbase Services, all Documents or Communications you received in response to such formal,
informal, or voluntary requests, and all analyses (including but not limited to any regression andcorrelation, or event study analysis) whether done by you or on your behalf relating to the Coinbase
Platform, any of the Named Digital Assets or Named Coinbase Services, the market performanceof any of the Named Digital Assets relative to other Digital Assets or to public statements by
Coinbase and/or the alleged issuers or promoters of such Named Digital Assets, and the size andvalue of sales of any of the Named Digital Assets over time.
REQUEST NO. 3.
Documents and/or Communications sufficient to establish when the SEC first learned of
the Coinbase Platform, the Named Digital Assets, and the Named Coinbase Services, and when
-10-

Case 1:23-cv-04738-KPF Document 133-2 Filed 06/28/24 Page 12 of 24

the SEC first learned that each of the Named Digital Assets had been listed or was planned to belisted on the Coinbase Platform, without limitation as to the applicable time period.
REQUEST NO. 4.
All Communications with, and Documents concerning Communications with, third parties(including any Government Entity) concerning the application of federal laws, regulations, or rules(including, but not limited to, the Securities Act of 1933 and the Securities Exchange Act of 1934)
to the Coinbase Platform, the Named Digital Assets, or the Named Coinbase Services.
REQUEST NO. 5.
All Communications with, and Documents concerning Communications with, third parties(including any Government Entity) concerning any investigation by a Government Entity
concerning Coinbase, the Coinbase Platform, any of the Named Digital Assets, or any of theNamed Coinbase Services.
REQUEST NO. 6.
All Communications with, and Documents concerning Communications with, any
Government Entity, including the CFTC, or with the Financial Industry Regulatory Authority(FINRA), relating to the allegations in the Complaint, the Investigation, Staking as a Service,
Digital Assets, or Digital Asset Platforms, including but not limited to:a. Any factual Documents prepared for or by the Commission, any Commissioner,
and/or any Commission Staff or otherwise in the Commission Staff’s custody orcontrol, relating to the regulatory and/or enforcement authorities of the SEC
and/or another Government Entity, including the scope of regulatory and/or
enforcement authorities as between the SEC and another Government Entity or
potential or proposed legislation relating to the regulatory and/or enforcement
authorities of the SEC and/or another Government Entity; and-11-

Case 1:23-cv-04738-KPF Document 133-2 Filed 06/28/24 Page 13 of 24b. Any external Communications by the Commission, any Commissioner, and/or
any Commission Staff, whether formal or informal, relating to the regulatory
and/or enforcement authorities of the SEC and/or another Government Entity,
including the scope of regulatory and/or enforcement authorities as between the
SEC and another Government Entity or potential or proposed legislation relating
to the regulatory and/or enforcement authorities of the SEC and/or another
Government Entity.
REQUEST NO. 7.
All Communications with, and Documents concerning Communications with, journalists
or other employees or affiliates of news or media organizations concerning Coinbase, this Action,
the Investigation, the Coinbase Platform, Digital Asset Platforms, any of the Named Digital Assets,or any of the Named Coinbase Services.
REQUEST NO. 8.
All Communications with, and Documents concerning Communications with, any allegeddevelopers of, alleged issuers of, or Persons otherwise affiliated with any of the Named Digital
Assets or their associated blockchain networks, including any Documents or information
provided to you by any alleged developers of, alleged issuers of, or Persons otherwise affiliatedwith any of the Named Digital Assets, their affiliated blockchain networks, or their counsel.
REQUEST NO. 9.
All Documents and Communications concerning any discussions, instructions, advice,inquiries, or other Communications between the SEC and any Person concerning that Person’s
actual, planned, or potential business or other relationship with Coinbase.
REQUEST NO. 10.
Without limitation as to time period, all Communications with, and Documents-12-

Case 1:23-cv-04738-KPF Document 133-2 Filed 06/28/24 Page 14 of 24

concerning Communications with: Prometheum, Inc., Martin Kaplan, Aaron Kaplan, or Benjamin
Kaplan; Securitize, Inc.; Securitize LLC; or Securitize Markets, LLC.
REQUEST NO. 11.
All Communications with, and Documents concerning Communications with, IEX Group,
Inc. or Investors’ Exchange LLC concerning Coinbase, Digital Assets, or Digital Asset Platforms.
REQUEST NO. 12.
Without limitation as to time period, all Communications with, and Documents
concerning Communications with, any Person concerning: (i) any actual, planned, or potential
registration by that Person as an exchange, broker, dealer, clearing agency, alternative trading
system, or custodian that would or could facilitate the offer, sale, or custody of Digital Assets or
any product or service relating to Digital Assets, including but not limited to the requirements andprocess for or viability of such registration; or (ii) the registration with the SEC of any exchangetraded product that holds or references Digital Assets. For the purposes of this Request, “Person”
includes but is not limited to BlackRock, Inc., Valkyrie Investments Inc., Valkyrie Digital Assets
LLC, and Valkyrie Funds LLC.
REQUEST NO. 13.
All Documents and Communications concerning (i) the June 14, 2018 speech by former
SEC Director of the Division of Corporation Finance William Hinman titled “Digital Asset
Transactions: When Howey Met Gary (Plastic)” (“Hinman Speech”), (ii) FinHub’s April 2019
“Framework for ‘Investment Contract’ Analysis of Digital Assets,” and (iii) Report of Investigation
Pursuant to Section 21(a) of the Securities Exchange Act of 1934: The DAO, Exchange Act Release
No. 81207 (July 25, 2017), including but not limited to all Communications with any blockchain
network or representative thereof and all Documents and Communications, including internalCommunications, analyses, and other materials, that were prepared, reviewed, or relied upon by-13-

Case 1:23-cv-04738-KPF Document 133-2 Filed 06/28/24 Page 15 of 24

any current or former SEC Commissioner, Division Director, or Staff member in reaching theconclusions and observations reflected in these statements, including drafts of the statements andanalyses prepared or commented upon by SEC Staff.
REQUEST NO. 14.
All Documents and Communications concerning any public statements by theCommission or any SEC Division, Commissioner, or Staff member concerning the Named Digital
Assets or Digital Asset Platforms, including but not limited to any internal or externalCommunications concerning such public statements and any analyses or other materials that wereprepared or relied upon in reaching the conclusions and observations reflected in such publicstatements, including all Documents and Communications reflecting the Persons involved in such
Communications or analyses.
REQUEST NO. 15.
All Documents and Communications concerning whether Digital Assets or transactions
in Digital Assets are “investment contract[s]” within the meaning of the Securities Act of 1933or the Securities Exchange Act of 1934, including Documents and Communications concerning
the application of SEC v. W.J. Howey Co., 328 U.S. 293 (1946), to Digital Assets or transactions
in Digital Assets.
REQUEST NO. 16.
All Documents and Communications concerning (i) the role of a Digital Asset’s
ecosystem in the application of the federal securities laws to that asset, including but not limited
to determining whether transactions in an asset constitute transactions in investment contracts orother securities; or (ii) the ecosystems of the Named Digital Assets, including but not limited tothe components of such ecosystems, the identities of the alleged developers, issuers, and-14-

Case 1:23-cv-04738-KPF Document 133-2 Filed 06/28/24 Page 16 of 24

promoters affiliated with such ecosystems, and any decentralized applications or businessplatforms related to such ecosystems.
REQUEST NO. 17.
All Documents and Communications relating to your assertion during Oral Argument thatwhen someone “purchases tokens like [the Named Digital Assets], like these 13 examples . . .
they are investing into the network behind it”—that is, “the ecosystem.” See Jan. 17, 2024 Hr’g
Tr. at 21:20-22:5; see also id. at 57:17-21.
REQUEST NO. 18.
All Documents and Communications relating to (i) Bitcoin’s ecosystem; or (ii) yourassertion during Oral Argument that “there’s no ecosystem behind” Bitcoin. See Jan. 17, 2024
Hr’g Tr. at 30:7-15.
REQUEST NO. 19.
All Documents and Communications concerning the size, value, growth, or importance of
the Digital Asset industry or Digital Asset Platforms.
REQUEST NO. 20.
All Documents and Communications relating to all risks of loss that you contend are
relevant to whether Coinbase’s Staking Services involves the offer and sale of investment
contracts.
REQUEST NO. 21.
All Documents and Communications relating to all managerial efforts that you contend
Coinbase undertakes in providing the Staking Services.

-15-

Case 1:23-cv-04738-KPF Document 133-2 Filed 06/28/24 Page 17 of 24

REQUEST NO. 22.
All Documents and Communications concerning potential or proposed legislation relating
to the regulatory and/or enforcement authorities of the SEC and/or another Government Entitywith respect to Digital Assets or Digital Asset Platforms.
REQUEST NO. 23.
All Documents and Communications concerning any meeting or call involving one ormore Commissioner concerning Coinbase, the Coinbase Platform, or any of the Named Digital
Assets or Named Coinbase Services, including a list of the attendees of any such meeting or call.
REQUEST NO. 24.
All Documents and Communications from the SEC to Coinbase concerning (i) Coinbase
listing any Digital Assets or the sale of any of the Named Coinbase Services; or (ii) Coinbase’s
operations.
REQUEST NO. 25.
All Documents and Communications concerning any policy, guidance, clearance, or otherpermission or restriction given to current or former SEC Commissioners or employees concerning
the purchase, use, ownership, or trading of Digital Assets or use of Digital Asset Platforms,
including the purchase, use, ownership, or trading of any of the Named Digital Assets or Named
Coinbase Services by such Person or their family members, including but not limited to general
SEC policies and Communications with any Person.

-16-Case 1:23-cv-04738-KPF Document 133-2 Filed 06/28/24 Page 18 of 24

REQUEST NO. 26.
To the extent such Documents and Communications concern any Communications, analyses,
or other materials regarding Coinbase, any of the Named Digital Assets, or any of the Named
Coinbase Services, your investigative files in connection with any investigations by the Commission
or Commission Staff relating to the following litigation matters and all Documents andCommunications produced to or by the Commission in discovery in the following litigation matters:
a. SEC v. Kik Interactive Inc., Case No. 19-cv-5244 (S.D.N.Y.);b. SEC v. Telegram Grp. Inc. and TON Issuer Inc., Case No. 19-cv-9439 (S.D.N.Y.);
c. SEC v. Ripple Labs, Inc. et al., Case No. 20-cv-10832 (S.D.N.Y.);
d. SEC v. LBRY, Inc., Case No. 21-cv-260 (D.N.H.);
e. SEC v. Wahi et al., Case No. 2:22-cv-1009 (W.D. Wash.);f. SEC v. Binance Holdings Ltd. et al., Case No. 23-cv-1599 (D.D.C.);
g. SEC v. Bittrex, Inc. et al., Case No. 23-cv-580 (W.D. Wash.);h. SEC v. Genesis Global Capital, LLC and Gemini Tr. Co., LLC,
Case No. 23-cv-287 (S.D.N.Y.);
i. SEC v. Terraform Labs PTE Ltd. and Kwon, Case No. 23-cv-1346 (S.D.N.Y.);
j. SECv.
Payward,Inc.
andCase No. 23-cv-6003 (N.D. Cal.); andPaywardVentures,Inc.,k. SEC v. Payward Ventures, Inc. (D/B/A Kraken) and Payward Trading, Ltd. (D/B/A
Kraken), Case No. 23-cv-588 (N.D. Cal.).

-17-Case 1:23-cv-04738-KPF Document 133-2 Filed 06/28/24 Page 19 of 24

REQUEST NO. 27.
All Documents and Communications concerning Coinbase’s direct public offering or
registration statement on Form S-1 (including any drafts of such registration statement), including
but not limited to Documents and Communications concerning the application or potential
application of the federal securities laws to Coinbase’s business or operations.
REQUEST NO. 28.
All Documents and Communications concerning SEC Chair Gary Gensler’s public
remarks about Digital Assets, Digital Asset Platforms, and Staking as a Service, without limitation
as to the applicable time period, including but not limited to:a. Chair Gensler’s May 6, 2021 testimony before the United States House Committee
on Financial Services;b. Chair Gensler’s May 7, 2021 appearance on CNBC;
c. Chair Gensler’s May 26, 2021 testimony before the United States House
Subcommittee on Financial Services and General Government;
d. Chair Gensler’s August 3, 2021 remarks before the Aspen Security Forum;e. Chair Gensler’s September 21, 2021 interview with the Washington Post;
f. Chair Gensler’s October 5, 2021 testimony before the United States House
Committee on Financial Services;g. Chair Gensler’s August 19, 2022 opinion piece published by the Wall Street
Journal, titled “The SEC Treats Crypto Like the Rest of the Capital Markets”;
h. Chair Gensler’s December 7, 2022 interview with Yahoo! Finance;
i. Chair Gensler’s interview with Ankush Khardori, as reported in Intelligencer’s
February 23, 2023 article, “Can Gary Gensler Survive Crypto Winter? D.C.’s Top
Financial Cop on Bankman-Fried Blowback”;
j. Chair Gensler’s interview with CNBC’s Squawk Box, as reported in CNBC’s
February 10, 2023 article, “SEC’s Gary Gensler on Kraken Staking Settlement:
Other Crypto Platforms Should take Note of This”;
k. Chair Gensler’s March 29, 2023 testimony before the United States House
Appropriations Subcommittee on Financial Services and General Government;-18-

Case 1:23-cv-04738-KPF Document 133-2 Filed 06/28/24 Page 20 of 24l.

Chair Gensler’s statements regarding Digital Assets during “Office Hours with
Gary Gensler” including but not limited to the episodes from August 16, 2021, July28, 2022, August 4, 2022, October 3, 2022, February 9, 2023, and April 27, 2023;

m. Chair Gensler’s April 18, 2023 testimony before the United States House

Committee on Financial Services;n. Chair Gensler’s interview with CNBC’s Squawk Box, as reported in CNBC’s June

6, 2023 article, “SEC Chair Gensler doubts the need for more digital currency”;
o. Chair Gensler’s interview with the Wall Street Journal, as reported in the June 8,2023 article, “SEC’s Gary Gensler Had Crypto in His Sights for Years. Now He’s
Suing Binance and Coinbase.”;p. Chair Gensler’s June 8, 2023 remarks before the Piper Sandler Global Exchange &Fintech Conference;q. Chair Gensler’s interview with the Wall Street Journal, as broadcast in the June 14,2023 podcast episode, “SEC Chair Gary Gensler on His Crypto Crackdown”;
r.

Chair Gensler’s September 12, 2023 testimony before the United States Senate
Committee on Banking, Housing, and Urban Affairs;s.

Chair Gensler’s September 27, 2023 testimony before the United States House
Committee on Financial Services; andt. Chair Gensler’s statements concerning Digital Assets or Digital Asset Platforms
made prior to his tenure as SEC Chair.
REQUEST NO. 29.
Without limitation as to time period, all Documents and Communications concerning thePetition for Rulemaking submitted by Coinbase on July 21, 2022, any comment letters submitted
by Coinbase concerning its Petition for Rulemaking, or the Commission’s Order denying
Coinbase’s Petition for Rulemaking issued on December 15, 2023, including any Communications
with any third parties (including any Government Entity) concerning Coinbase’s Petition for
Rulemaking or the Commission’s Order.
REQUEST NO. 30.
Without limitation as to time period, all Documents and Communications concerning thecomment letters sent to Coinbase Global, Inc. by the Commission dated September 22, 2023 and-19-

Case 1:23-cv-04738-KPF Document 133-2 Filed 06/28/24 Page 21 of 24

April 17, 2024 regarding Coinbase Global, Inc.’s Form 10-K for the year ended December 31,
2023, Form 10-K for the year ended December 31, 2022, Form 10-Q for the period ended June 30,
2023, Form 8-K filed January 10, 2023, and Form 8-K filed May 4, 2023 (File No. 001-40289),
and any subsequent correspondence relating thereto.
REQUEST NO. 31.
All Documents and Communications that you intend to use or otherwise rely upon for any
purpose in this Action, including: (i) all Documents and Communications identified, quoted, orreferenced in the Complaint, indicating the paragraph(s) of the Complaint to which each Document
and Communication relates; and (ii) all Documents and Communications that were created,
reviewed, considered, or relied upon by you in preparing the Complaint, including, without
limitation, any computations or analyses prepared by you underlying any assertions in the
Complaint.
REQUEST NO. 32.
All Documents and Communications relating to any Person that you have retained or intend
to retain as an expert witness to testify or provide an affidavit or report in this Action, including:(i) a curriculum vitae for the expert; (ii) any Documents or Communications relied on, referred to,or consulted by the expert in formulating any opinions the expert intends to offer in any affidavit,
report, or testimony in this Action; (iii) any Documents or Communications created by the expert
related to this Action; (iv) all engagement letters or agreements concerning the expert’s retention
or employment in connection with this Action; (v) all articles, books, book chapters, speeches, andother presentations created by the expert during the past ten years that relate in any way to theopinions or conclusions reached by the expert in connection with the Action; (vi) all testimony
given by and reports submitted by the expert as an expert witness during the past five years; and-20-

Case 1:23-cv-04738-KPF Document 133-2 Filed 06/28/24 Page 22 of 24(vii) all Documents and Communications provided, prepared, received, reviewed, or madeavailable to the expert or a representative of the expert.
REQUEST NO. 33.
All Documents and Communications produced by any third parties in connection with thisAction (through subpoena, agreement, or otherwise).
REQUEST NO. 34.
(a) All Documents referenced in Plaintiff’s initial disclosures, and (b) all Documents andCommunications relating to any Person listed as an individual or an entity likely to havediscoverable information in Plaintiff’s initial disclosures and that also relate to any issue in thisAction.

-21-

Case 1:23-cv-04738-KPF Document 133-2 Filed 06/28/24 Page 23 of 24

Dated: April 23, 2024
New York, New YorkWACHTELL, LIPTON, ROSEN & KATZ
/s/ William Savitt
William Savitt
Kevin S. Schwartz
Sarah K. Eddy
Adam M. Gogolak
David P.T. Webb
Emily R. Barreca
51 West 52nd Street
New York, New York 10019(212) 403-1000
WDSavitt@wlrk.com
KSSchwartz@wlrk.com
SKEddy@wlrk.com
AMGogolak@wlrk.com
DPTWebb@wlrk.com
ERBarreca@wlrk.com

Steven R. Peikin
Kathleen S. McArthur
James M. McDonald
Julia A. Malkina
Olivia G. Chalos
SULLIVAN & CROMWELL LLP
125 Broad Street
New York, New York 10004-2498(212) 558-4000
Attorneys for Defendants-22-

Case 1:23-cv-04738-KPF Document 133-2 Filed 06/28/24 Page 24 of 24

CERTIFICATE OF SERVICE
I, William Savitt, hereby certify that on April 23, 2024, I caused the foregoing to beserved via electronic mail upon counsel of record in the above-captioned action.

/s/ William Savitt
William Savitt

Case 1:23-cv-04738-KPF Document 133-3 Filed 06/28/24 Page 1 of 17

Exhibit C

Case 1:23-cv-04738-KPF Document 133-3 Filed 06/28/24 Page 2 of 17

MARTIN LIPTONMARK GORDONHERBERT M. WACHTELLJEANNEMARIE O’BRIENEDWARD D. HERLIHY

WAYNE M. CARLIN

DANIEL A. NEFF

STEPHEN R. DiPRIMASTEVEN A. ROSENBLUMNICHOLAS G. DEMMO

JOHN F. SAVARESE

IGOR KIRMANSCOTT K. CHARLES

JONATHAN M. MOSESJODI J. SCHWARTZ

T. EIKO STANGEADAM O. EMMERICHWILLIAM SAVITTRALPH M. LEVENEGREGORY E. OSTLINGRICHARD G. MASONDAVID B. ANDERSROBIN PANOVKA

ADAM J. SHAPIRODAVID A. KATZNELSON O. FITTS

ILENE KNABLE GOTTS

JOSHUA M. HOLMESTREVOR S. NORWITZDAVID E. SHAPIRO

ANDREW J. NUSSBAUMDAMIAN G. DIDDENRACHELLE SILVERBERG

IAN BOCZKOSTEVEN A. COHEN

MATTHEW M. GUEST

DEBORAH L. PAULDAVID E. KAHANDAVID C. KARPDAVID K. LAM

RICHARD K. KIM

BENJAMIN M. ROTHJOSHUA R. CAMMAKER

JOSHUA A. FELTMAN

51 WEST

52ND

STREETNEW YORK, N.Y. 10019-6150
TELEPHONE: (212) 403-1000
FACSIMILE:(212) 403-2000

ELAINE P. GOLIN

STEVEN WINTEREMIL A. KLEINHAUS

EMILY D. JOHNSONKARESSA L. CAINJACOB A. KLINGRONALD C. CHEN

RAAJ S. NARAYANBRADLEY R. WILSONVIKTOR SAPEZHNIKOVGRAHAM W. MELIMICHAEL J. SCHOBELGREGORY E. PESSINELINA TETELBAUMCARRIE M. REILLYERICA E. AHOGEORGE A. KATZ (1965–1989)

MARK F. VEBLENLAUREN M. KOFKEJAMES H. FOGELSON (1967–1991)

SARAH K. EDDYZACHARY S. PODOLSKYLEONARD M. ROSEN (1965–2014)

VICTOR GOLDFELDRACHEL B. REISBERGRANDALL W. JACKSONMARK A. STAGLIANO

BRANDON C. PRICECYNTHIA FERNANDEZ

OF COUNSELANDREW R. BROWNSTEIN

ERIC S. ROBINSONMICHAEL H. BYOWITZERIC M. ROSOF

KENNETH B. FORRESTMICHAEL J. SEGAL

BEN M. GERMANAWON S. SHINSELWYN B. GOLDBERGDAVID M. SILKPETER C. HEINELLIOTT V. STEINJB KELLY

LEO E. STRINE, JR.*JOSEPH D. LARSONPAUL VIZCARRONDO, JR.

LAWRENCE S. MAKOWJEFFREY M. WINTNERPHILIP MINDLINAMY R. WOLF

THEODORE N. MIRVISMARC WOLINSKYKEVIN S. SCHWARTZ

LUMERMANNMICHAEL S. BENNCHRISTINA C. MA

ALISON Z. PREISSNOAH B. YAVITZ

TIJANA J. DVORNICBENJAMIN S. ARFAJENNA E. LEVINENATHANIEL D. CULLERTONRYAN A. McLEOD

ERIC M. FEINSTEIN

ANITHA REDDYADAM L. GOODMAN

JOHN L. ROBINSONSTEVEN R. GREEN

JOHN R. SOBOLEWSKIMENG LU

DAVID S. NEILL* ADMITTED IN DELAWARECOUNSELDAVID M. ADLERSTEINMICHAEL W. HOLTSUMITA AHUJAMARK A. KOENIGFRANCO CASTELLICARMEN X.W. LU

ANDREW J.H. CHEUNG

J. AUSTIN LYONSPAMELA EHRENKRANZALICIA C. McCARTHY

ALINE R. FLODRJUSTIN R. ORR

KATHRYN GETTLES-ATWA

NEIL M. SNYDERADAM M. GOGOLAKJEFFREY A. WATIKERANGELA K. HERRING

Direct Dial: (212) 403-1329
Direct Fax: (212) 403-2329
E-Mail: WDSavitt@wlrk.com

June , 2024
By Personal Service
Office of the General Counsel
Massachusetts Institute of Technology
77 Massachusetts Avenue, 7-206
Cambridge, MA 02139-4307
Re:

Securities and Exchange Commission v. Coinbase, Inc. et al.
Case No. 23 Civ. 4738 (KPF) (S.D.N.Y.)

To Whom it May Concern:
Please find enclosed a subpoena calling for the production of certain documents
and electronically stored information in connection with the above-referenced proceeding.
If you have any questions or wish to discuss this matter, please contact me or mycolleagues Kevin Schwartz (KSchwartz@wlrk.com) and David Webb (DPTWebb@wlrk.com).

Case 1:23-cv-04738-KPF Document 133-3 Filed 06/28/24 Page 3 of 17

Office of the General Counsel
Massachusetts Institute of Technology
June , 2024
Page 2Sincerely,

William Savitt
Enclosures:
U.S. District Court Subpoena to Produce Documents
Schedule A

Case 1:23-cv-04738-KPF Document 133-3 Filed 06/28/24 Page 4 of 17
AO 88B (Rev. 12/13) Subpoena to Produce Documents, Information, or Objects or to Permit Inspection of Premises in a Civil Action

UNITED STATES DISTRICT COURT
for theSouthern District
ofof
New
York
__________
District__________
Securities and Exchange Commission
Plaintiffv.
Coinbase, Inc. and Coinbase Global, Inc.
Defendant

)
)
)
)
)
)

Civil Action No. 23-Civ-4738 (KPF)

SUBPOENA TO PRODUCE DOCUMENTS, INFORMATION, OR OBJECTSOR TO PERMIT INSPECTION OF PREMISES IN A CIVIL ACTION
Office of the General Counsel, Massachusetts Institute of Technology, 77 Massachusetts Avenue, 7-206
Cambridge, MA 02139

To:(Name of person to whom this subpoena is directed)✔
u Production: YOU ARE COMMANDED to produce at the time, date, and place set forth below the following
documents, electronically stored information, or objects, and to permit inspection, copying, testing, or sampling of thematerial: See Schedule A, attached.
Place: $WDORFDWLRQPXWXDOO\DJUHHGXSRQE\WKHSDUWLHVRUDW'HZVQDS $VVRF6WDWH6WWK)ORRU%RVWRQ0$

Date and Time: -XQHSP(67u Inspection of Premises: YOU ARE COMMANDED to permit entry onto the designated premises, land, orother property possessed or controlled by you at the time, date, and location set forth below, so that the requesting party
may inspect, measure, survey, photograph, test, or sample the property or any designated object or operation on it.
Place:

Date and Time:The following provisions of Fed. R. Civ. P. 45 are attached – Rule 45(c), relating to the place of compliance;
Rule 45(d), relating to your protection as a person subject to a subpoena; and Rule 45(e) and (g), relating to your duty torespond to this subpoena and the potential consequences of not doing so.
Date:-XQH
CLERK OF COURT
OR
Signature of Clerk or Deputy Clerk

Attorney’s signature

Coinbase, Inc.
The name, address, e-mail address, and telephone number of the attorney representing (name of party), who issues or requests this subpoena, are:and Coinbase Global, Inc.
William Savitt, Wachtell Lipton Rosen & Katz, 51 W. 52nd St., New York, NY 10019, WDSavitt@wlrk.com,(212) 403-1000

Notice to the person who issues or requests this subpoena
A notice and a copy of the subpoena must be served on each party in this case before it is served on the person to whom
it is directed. Fed. R. Civ. P. 45(a)(4).

Case 1:23-cv-04738-KPF Document 133-3 Filed 06/28/24 Page 5 of 17
AO 88B (Rev. 12/13) Subpoena to Produce Documents, Information, or Objects or to Permit Inspection of Premises in a Civil Action (Page 2)

Civil Action No. 23-Civ-4738 (KPF)
PROOF OF SERVICE(This section should not be filed with the court unless required by Fed. R. Civ. P. 45.)
I received this subpoena for (name of individual and title, if any)on (date).
u I served the subpoena by delivering a copy to the named person as follows:on (date); oru I returned the subpoena unexecuted because:.
Unless the subpoena was issued on behalf of the United States, or one of its officers or agents, I have alsotendered to the witness the fees for one day’s attendance, and the mileage allowed by law, in the amount of$
My fees are $.
for travel and $for services, for a total of $I declare under penalty of perjury that this information is true.

Date:
Server’s signature

Printed name and title

Server’s address

Additional information regarding attempted service, etc.:

0.00

.

Case 1:23-cv-04738-KPF Document 133-3 Filed 06/28/24 Page 6 of 17
AO 88B (Rev. 12/13) Subpoena to Produce Documents, Information, or Objects or to Permit Inspection of Premises in a Civil Action(Page 3)

Federal Rule of Civil Procedure 45 (c), (d), (e), and (g) (Effective 12/1/13)(c) Place of Compliance.
(1) For a Trial, Hearing, or Deposition. A subpoena may command aperson to attend a trial, hearing, or deposition only as follows:(A) within 100 miles of where the person resides, is employed, or
regularly transacts business in person; or(B) within the state where the person resides, is employed, or regularlytransacts business in person, if the person(i) is a party or a party’s officer; or(ii) is commanded to attend a trial and would not incur substantial
expense.

(ii) disclosing an unretained expert’s opinion or information that does
not describe specific occurrences in dispute and results from the expert’s
study that was not requested by a party.
(C) Specifying Conditions as an Alternative. In the circumstances
described in Rule 45(d)(3)(B), the court may, instead of quashing or
modifying a subpoena, order appearance or production under specified
conditions if the serving party:(i) shows a substantial need for the testimony or material that cannot beotherwise met without undue hardship; and(ii) ensures that the subpoenaed person will be reasonably compensated.
(e) Duties in Responding to a Subpoena.

(2) For Other Discovery. A subpoena may command:(A) production of documents, electronically stored information, or
tangible things at a place within 100 miles of where the person resides, isemployed, or regularly transacts business in person; and(B) inspection of premises at the premises to be inspected.
(d) Protecting a Person Subject to a Subpoena; Enforcement.
(1) Avoiding Undue Burden or Expense; Sanctions. A party or attorney
responsible for issuing and serving a subpoena must take reasonable steps
to avoid imposing undue burden or expense on a person subject to thesubpoena. The court for the district where compliance is required must
enforce this duty and impose an appropriate sanction—which may include
lost earnings and reasonable attorney’s fees—on a party or attorney who
fails to comply.
(2) Command to Produce Materials or Permit Inspection.
(A) Appearance Not Required. A person commanded to produce
documents, electronically stored information, or tangible things, or topermit the inspection of premises, need not appear in person at the place of
production or inspection unless also commanded to appear for a deposition,
hearing, or trial.
(B) Objections. A person commanded to produce documents or tangible
things or to permit inspection may serve on the party or attorney designatedin the subpoena a written objection to inspecting, copying, testing, or
sampling any or all of the materials or to inspecting the premises—or to
producing electronically stored information in the form or forms requested.
The objection must be served before the earlier of the time specified forcompliance or 14 days after the subpoena is served. If an objection is made,the following rules apply:(i) At any time, on notice to the commanded person, the serving party
may move the court for the district where compliance is required for an
order compelling production or inspection.
(ii) These acts may be required only as directed in the order, and theorder must protect a person who is neither a party nor a party’s officer fromsignificant expense resulting from compliance.
(3) Quashing or Modifying a Subpoena.
(A) When Required. On timely motion, the court for the district wherecompliance is required must quash or modify a subpoena that:(i) fails to allow a reasonable time to comply;(ii) requires a person to comply beyond the geographical limits
specified in Rule 45(c);(iii) requires disclosure of privileged or other protected matter, if noexception or waiver applies; or(iv) subjects a person to undue burden.
(B) When Permitted. To protect a person subject to or affected by a
subpoena, the court for the district where compliance is required may, on
motion, quash or modify the subpoena if it requires:(i) disclosing a trade secret or other confidential research,development, or commercial information; or(1) Producing Documents or Electronically Stored Information. These
procedures apply to producing documents or electronically stored
information:(A) Documents. A person responding to a subpoena to produce documents
must produce them as they are kept in the ordinary course of business ormust organize and label them to correspond to the categories in the demand.
(B) Form for Producing Electronically Stored Information Not Specified.
If a subpoena does not specify a form for producing electronically stored
information, the person responding must produce it in a form or forms inwhich it is ordinarily maintained or in a reasonably usable form or forms.
(C) Electronically Stored Information Produced in Only One Form. The
person responding need not produce the same electronically stored
information in more than one form.
(D) Inaccessible Electronically Stored Information. The person
responding need not provide discovery of electronically stored informationfrom sources that the person identifies as not reasonably accessible becauseof undue burden or cost. On motion to compel discovery or for a protective
order, the person responding must show that the information is notreasonably accessible because of undue burden or cost. If that showing ismade, the court may nonetheless order discovery from such sources if therequesting party shows good cause, considering the limitations of Rule26(b)(2)(C). The court may specify conditions for the discovery.
(2) Claiming Privilege or Protection.
(A) Information Withheld. A person withholding subpoenaed information
under a claim that it is privileged or subject to protection as trial-preparationmaterial must:(i) expressly make the claim; and(ii) describe the nature of the withheld documents, communications, ortangible things in a manner that, without revealing information itself
privileged or protected, will enable the parties to assess the claim.
(B) Information Produced. If information produced in response to a
subpoena is subject to a claim of privilege or of protection astrial-preparation material, the person making the claim may notify any party
that received the information of the claim and the basis for it. After being
notified, a party must promptly return, sequester, or destroy the specified
information and any copies it has; must not use or disclose the information
until the claim is resolved; must take reasonable steps to retrieve theinformation if the party disclosed it before being notified; and may promptly
present the information under seal to the court for the district wherecompliance is required for a determination of the claim. The person who
produced the information must preserve the information until the claim is
resolved.
(g) Contempt.
The court for the district where compliance is required—and also, after amotion is transferred, the issuing court—may hold in contempt a person
who, having been served, fails without adequate excuse to obey the
subpoena or an order related to it.

For access to subpoena materials, see Fed. R. Civ. P. 45(a) Committee Note (2013).

Case 1:23-cv-04738-KPF Document 133-3 Filed 06/28/24 Page 7 of 17

SCHEDULE A
This subpoena requires the production of Documents described herein. The Requests areto be responded to in accordance with the following Definitions and Instructions.
DEFINITIONS
1.

“Action” means the above-captioned civil action.

2.

“Coinbase” means Coinbase, Inc., Coinbase Global, Inc., and any of their affiliates,

subsidiaries, divisions, predecessors and successors, and any of their respective officers, directors,
employees, agents, or attorneys.
3.

“Coinbase Platform” means Coinbase’s digital asset spot exchange.

4.

“Coinbase Prime” means the service described in the Coinbase Prime Product

Guide. See Coinbase Prime Product Guide, Coinbase (2022), https://tinyurl.com/mu89cran.
5.

“Coinbase Staking Services” means the services offered to individual Coinbase

users through the “Coinbase Earn” program.
6.

“Communication” or “communications” means the transmittal of information (inthe form of facts, ideas, inquiries, or otherwise), whether orally or in writing, or by any other meansor medium, between or among two or more Persons or entities including but not limited to spoken
words, inquiries, discussions,conversations,conferences,interviews,

negotiations,agreements, reports, meetings, correspondence, letters, electronically transmitted messages (e.g.,email, text messages, instant messaging), postings on Internet bulletin boards, or other forms of
written, verbal or electronic intercourse, however transmitted, ESI (as defined below), anddocuments, as defined herein.
7.

“Complaint” means the Complaint filed in the Action on June 6, 2023.

8.

“Defendants” means Coinbase, Inc. and Coinbase Global, Inc.

Case 1:23-cv-04738-KPF Document 133-3 Filed 06/28/24 Page 8 of 17

9.

“Digital Asset” means any digital asset, including any cryptocurrency, virtual

currency, or other blockchain-based coin or token, and the blockchain with which an asset isaffiliated, if any.
10.

“Digital Asset Platform” means any exchange or other platform on which Digital

Assets are offered and sold.
11.

“Document” or “documents” shall have the broadest meaning permitted under theFederal Rules of Civil Procedure and shall include, without limitation, the original and all nonidentical copies of any handwritten, printed, typed, recorded, or other graphic material, or ESI (asdefined below), of any kind and nature, including all drafts and transcriptions thereof, however
produced or reproduced, and including but not limited to accounting materials, accounts,
agreements, analyses, appointment books, books of account, calendars, catalogs, checks,
communications (as defined herein), computer data, computer disks, contracts, correspondence,
date books, diaries, diskettes, drawings, email messages, faxes, guidelines, instructions, interoffice communications, invoices, letters, logs, manuals, memoranda, minutes, notes, opinions,payments, plans, purchase confirmations, receipts, records, regulations, reports, sound recordings,
spreadsheets, statements, studies, surveys, tickets, timesheets, trade records, vouchers, word
processing materials (however stored or maintained), and all other means by which information isstored for retrieval in fixed form.
12.

“ESI” means information that is stored in an electronic format, regardless of themedia or whether it is in the original format in which it was created, and that is retrievable inperceivable form and includes but is not limited to metadata, system data, deleted data, andfragmented data.

-2-

Case 1:23-cv-04738-KPF Document 133-3 Filed 06/28/24 Page 9 of 17

13.

“Government Entity” means any federal, state, or foreign agency or authority, or

any current or former officer, employee, or agent thereof. For the avoidance of doubt, Government
Entity includes, but is not limited to, the U.S. Securities and Exchange Commission (“SEC”), U.S.
Commodity Futures Trading Commission (“CFTC”), the U.S. Department of Justice, the U.S.
Department of the Treasury, the Financial Crimes Enforcement Network (“FinCEN”), the U.S.
Internal Revenue Service, and the New York Department of Financial Services (“DFS”).
14.

“Named Digital Assets” means SOL, ADA, MATIC, FIL, SAND, AXS, CHZ,

FLOW, ICP, NEAR, VGX, and DASH.
15.

“Named Coinbase Services” means Coinbase Prime and Coinbase’s StakingServices.
16.

“Person” means any natural person or individual, or any firm, partnership (generalor limited), limited liability company, proprietorship, corporation, unincorporated association,
trust, joint venture, or any other legal or Governmental Entity, organization, or body of any typewhatsoever, as well as all agents, officers, directors, boards, committees, subcommittees,
employees, consultants, representatives, or instrumentalities thereof.
17.

“Staking” means the proof of stake consensus mechanism used by certain

blockchain protocols to validate, verify, and secure transactions on a blockchain.
18.

“Staking as a Service” means services offered to individuals to facilitate the stakingof their digital assets to a blockchain with a proof-of-stake consensus mechanism.
19.

“You” or “Your” refers to the Massachusetts Institute of Technology, as well as

any parents, subsidiaries, affiliates, predecessors, successors, assigns, members, principals,
partners,

directors,

boards,committees,

subcommittees,

officers,

employees,

representatives, consultants, attorneys, or anyone else purporting to act on <our behalf.

-3-

agents,Case 1:23-cv-04738-KPF Document 133-3 Filed 06/28/24 Page 10 of 17

20.

The terms “concerning,” “regarding,” “with regard to,” “relating to,” and “referring

to” shall be read and applied as interchangeable and shall be construed in the broadest sense
permitted to mean discussing, supporting, describing, concerning, regarding, with regard to,relating to, referring to, pertaining to, containing, analyzing, evaluating, studying, recording,memorializing, reporting on, commenting on, reviewed in connection or in conjunction with,evidencing, setting forth, contradicting, refuting, considering, recommending, or constituting, inwhole or in part.
21.

The language of the Requests shall be read liberally, so as to be inclusive rather

than exclusive, and in particular: (i) the use of the singular shall be deemed to include the pluraland vice versa, and the use of one gender shall include the other; (ii) the terms “and” as well as“or” shall be construed disjunctively or conjunctively as necessary to bring within the scope ofa Request all documents that might otherwise be construed as outside its scope; (iii) the present
tense includes the past and future tenses, and vice versa; (iv) the terms “any” or “all” shall mean
“any and all,” “each and every,” and “anyone and everyone”; and (v) “include,” “includes,” and“including” shall mean “including but not limited to.”
INSTRUCTIONSDefendants request that You produce, wherever located, all documents described belowthat are in Your possession, custody, or control, wherever located, regardless of whether they arepossessed directly by You or any of Your agents, representatives, employees, accountants,
attorneys, or other persons acting or purporting to act on Your behalf.
1.

Unless otherwise specified, the time period for these Requests is January 1, 2018

through April 17, 2021.

-4-

Case 1:23-cv-04738-KPF Document 133-3 Filed 06/28/24 Page 11 of 17

2.

Responsive Documents shall be produced in image format, with searchable text

load files that are compatible with standard litigation support software, including Relativity,&RQFRUGDQFHDQG,3527KHLPDJHVVKDOOEHEODFNDQGZKLWHVLQJOHဨSDJH'3,Group IV.tiff images. Images for documents created with office or personal productivity software (e.g.,
wordprocessing documents, spreadsheets, presentations, databases, charts, and graphs) shall
include tracked changes, comments, hidden rows, columns or worksheets, speakers notes, and anyother similar content that can be made visible within the application. The load file shall include
for each Document, the metadata fields listed below. For any Documents that have been globally
GHဨGXSOLFDWHGWKHFXVWodian field shall reflect the all custodians who had a copy of the Document
GXULQJSURFHVVLQJDQGEHIRUHGHဨGXSOLFDWLRQ)RUHDFKLQGLYLGXDO'RFXPHQWEDVHGRQDQHOHFWURQLF
file, the load file shall, unless such Document contains redactions, contain the path to thecorresponding text that is extracted from the electronic file. Documents produced in redacted formshall contain text generated by optical character recognition (OCR) of the redacted image(s). In
addition to the foregoing, for all email, the load file shall also include, to the extent practicable,
header information including: (1) the individual(s) to whom the communication was directed³7R´   WKHDXWKRURIWKHHဨPDLOFRPPXQLFDWLRQ ³)URP´   DOOLQGLYLGXDOVZKRZHUHFRSLHG
(“cc”) and/or blind copied (“bcc”) on the communication; (4) the subject line of the communication(“Re” or “Subject”); and (5) the date and time sent. For each Document, the load file shall also
contain: (1) the beginning Bates number (referring to the first page of the Document); (2) the
ending Bates number (referring to the last page of the Document); and in the case of Documentswith attachments, (3) the beginning attachment range number(s), and (4) the ending attachment
range number(s), where the “attachment range” records the relationship of Documents to their
attachments. The attachment range should be recorded from the first page of the first Document-5-Case 1:23-cv-04738-KPF Document 133-3 Filed 06/28/24 Page 12 of 17

in the attachment range, to the last page of the last Document in the attachment range. In addition,
all spreadsheet, presentation, audio, and audiovisual Documents that do not require redaction shall
EHSURGXFHGLQQDWLYHIRUPDWZLWKDVLQJOHဨSDJHSODFHKROGHU *URXS,9WLIILPDJH LQGLFDWLQJWKDWthe file is being produced in native format. The right to demand production of any other responsive
Documents in their native format (including all metadata) is expressly reserved.
3.

Unless otherwise specified, these Requests are limited to Documents andCommunications (i) sent to, from, cc, or bcc Gary Gensler’s MIT email address, (ii) maintainedon any laptop or desktop computer used by Gary Gensler at MIT, or (iii) maintained on any MIT
network or shared drive or folder maintained, used, or accessed in the normal course by Gary
Gensler or any individual acting on his behalf.
4.

A Request for a document shall be deemed to include a request for all transmittal

sheets, cover letters, exhibits, enclosures, attachments, or other matters affixed to the document,in addition to the document itself.
5.

Each Request seeks production of each document in its entirety withoutabbreviations, redaction, or expurgation.
6.

Responsive documents and communications are to be designated clearly so as toreflect their owner and/or custodian. Any document not produced in electronic format is to be
produced in its original file folder, with all labels or similar markings intact and included, and with
the name of the Person from whose file it was produced.
7.

Electronically stored information, or “ESI,” shall be produced in the form or forms

in which it is ordinarily maintained or in a form that is reasonably usable. Specifically, where thedocuments responsive to a Request are stored electronically, any responsive e-mails, Word
documents, and other unstructured data are to be produced in TIFF plus metadata plus extracted-6-Case 1:23-cv-04738-KPF Document 133-3 Filed 06/28/24 Page 13 of 17

text format. Any responsive Excel charts, PowerPoints, databases, and other structured data areto be produced in native format. The right to demand production of any other responsive
documents in their native format (including all available metadata) is expressly reserved.
8.

Each Request herein requires that You produce files from all reasonably accessible

sources of information in or on which You or Your document custodians store or maintainpotentially responsive documents.
9.

Draft or non-identical copies are to be considered separate documents for purposesof these Requests. Any and all drafts and copies of each document that are responsive to any
Request for documents shall be produced, as shall all copies of such documents that are not
identical in any respect, including, but not limited to, copies containing handwritten notes,
markings, stamps, or interlineations, whether or not the original of such document is within Your
possession, custody, or control. The author(s) of all handwritten notes should be identified.
10.

You shall construe each Request independently and not with reference to any other

Request for purposes of limitation.
11.

The use of the term “the” shall not be construed as limiting the scope of any

Request.
12.

If it is not possible to produce any document called for by a Request, or if any partof a Request is objected to, the reasons for the failure to produce the documents or the objection
should be stated specifically as to all grounds. If there are no documents or communications
responsive to any particular Request or subpart thereof, You shall state so in writing
13.

If You claim any form of privilege or protection or other reason as a ground forwithholding from production requested documents, You shall furnish a privilege log in compliance-7-

Case 1:23-cv-04738-KPF Document 133-3 Filed 06/28/24 Page 14 of 17

with Federal Rule of Civil Procedure 45(e)(2) and any other parameters agreed between You andDefendants.
14.

If You contend that any Request is overly broad and/or unduly burdensome,

identify all aspects of the Request that are overly broad or unduly burdensome and produce thedocuments and communications that are not subject to this contention.
15.

These Requests are continuing in nature, and any document obtained or locatedafter the production pursuant hereto, which would have been produced had it been available or its
existence known at the time, is to be supplied promptly by way of a supplemental production.
16.

Defendants serve these Requests without prejudice to their right to serve additional

Requests for the production of documents.
REQUESTS FOR PRODUCTION OF DOCUMENTS
REQUEST NO. 1.
All Documents and Communications concerning Professor Gary Gensler’s courses“FinTech: Shaping the Financial World” and “Blockchain and Money,” including but not limited
to syllabi, speaking notes, presentations, distributed materials (whether in person, through theCanvas system, or otherwise), assignments, and any classroom recordings.
REQUEST NO. 2.
All Documents and Communications concerning Professor Gary Gensler’s work with Your
Digital Currency Initiative, including speeches, publications, and reports concerning Digital
Assets, Digital Asset Platforms, Staking, or Staking as a Service.
REQUEST NO. 3.
All Communications and Documents concerning the application of federal laws,
regulations, or rules (including, but not limited to, the Securities Act of 1933 and the Securities-8-

Case 1:23-cv-04738-KPF Document 133-3 Filed 06/28/24 Page 15 of 17

Exchange Act of 1934) to Digital Assets, Digital Asset Platforms, Staking, or Staking as a Service,including whether and to what extent any particular Digital Asset (e.g., FIL, DASH, ETH, XRP,DAO, SOL), or transaction in any particular Digital Asset, is a “security” under the Securities Act
of 1933 and/or the Securities Exchange Act of 1934.
REQUEST NO. 4.
All Documents and Communications concerning whether Digital Assets or transactions
in Digital Assets are “investment contract[s]” within the meaning of the Securities Act of 1933or the Securities Exchange Act of 1934, including Documents and Communications concerning
the application of SEC v. W.J. Howey Co., 328 U.S. 293 (1946), to Digital Assets or transactions
in Digital Assets.
REQUEST NO. 5.
All Documents and Communications concerning (i) the role of a Digital Asset’s
ecosystem in the application of the federal securities laws, including but not limited todetermining whether transactions in an asset constitute transactions in investment contracts orother securities or (ii) the ecosystems of the Named Digital Assets, including, but not limited to,the components of such ecosystems, the identities of the alleged developers, issuers, andpromoters affiliated with such ecosystems.
REQUEST NO. 6.
All Documents and Communications relating to Bitcoin’s ecosystem or lack thereof.
REQUEST NO. 7.
All Communications and Documents concerning the regulatory authority of the Financial
Industry Regulatory Authority (FINRA) or any Government Entity, including the SEC or CFTC,with respect to Digital Assets, Digital Asset Platforms, Staking, or Staking as a Service.

-9-Case 1:23-cv-04738-KPF Document 133-3 Filed 06/28/24 Page 16 of 17

REQUEST NO. 8.
All Documents and Communications concerning (i) Report of Investigation Pursuant to
Section 21(a) of the Securities Exchange Act of 1934: The DAO, Exchange Act Release No.
81207 (July 25, 2017), (ii) the June 14, 2018 speech by former SEC Director of the Division of
Corporation Finance William Hinman titled “Digital Asset Transactions: When Howey Met Gary
(Plastic)” (“Hinman Speech”), or (iii) FinHub’s April 2019 “Framework for ‘Investment
Contract’ Analysis of Digital Assets.”
REQUEST NO. 9.
All Documents and Communications concerning any public statements by any Government
Entity, including but not limited to the SEC and any SEC Division, Commissioner, or Staff member,concerning Digital Assets, Digital Asset Platforms, Staking, or Staking as a Service.
REQUEST NO. 10.
All Documents and Communications concerning the size, value, growth, or importance of
the Digital Asset industry or Digital Asset Platforms.
REQUEST NO. 11.
All Documents and Communications concerning any investigation or litigation by aGovernment Entity concerning Digital Assets, Digital Asset Platforms, or Staking as a Service.
REQUEST NO. 12.
All Documents and Communications concerning Coinbase, the Coinbase Platform, or
the Named Coinbase Services.
REQUEST NO. 13.
All Documents and Communications concerning any discussions, instructions, advice,inquiries or other Communications between Professor Gensler and any Person concerning that

-10-

Case 1:23-cv-04738-KPF Document 133-3 Filed 06/28/24 Page 17 of 17

Person’s actual, planned, or potential business or other relationship with a developer of or Person
otherwise affiliated with Digital Assets, Digital Asset Platforms, or Staking as a Service provider.

Dated: June , 2024
New York, New YorkWACHTELL, LIPTON, ROSEN & KATZ
/s/ William Savitt
William Savitt
Kevin S. Schwartz
Sarah K. Eddy
Adam M. Gogolak
David P.T. Webb
Emily R. Barreca
51 West 52nd Street
New York, New York 10019(212) 403-1000
WDSavitt@wlrk.com
KSSchwartz@wlrk.com
SKEddy@wlrk.com
AMGogolak@wlrk.com
DPTWebb@wlrk.com
ERBarreca@wlrk.com

Steven R. Peikin
Kathleen S. McArthur
James M. McDonald
Julia A. Malkina
Olivia G. Chalos
SULLIVAN & CROMWELL LLP
125 Broad Street
New York, New York 10004-2498(212) 558-4000
Attorneys for Coinbase, Inc. and Coinbase Global,
Inc.

-11-

Case 1:23-cv-04738-KPF Document 133-4 Filed 06/28/24 Page 1 of 19

Exhibit D

Case 1:23-cv-04738-KPF Document 133-4 Filed 06/28/24 Page 2 of 19
Exhibit D
Page 1
Defendants’ Subpoena to Mr. Gary Gensler,
June 14 2024
(the “Subpoena”) (Ex. A)

Defendants’ Request for Production ofDocuments to SEC, April 23, 2024(“RFPs”) (Ex. B)

Defendants’ Subpoena to MIT,
June 4, 2023(“MIT Subpoena”) (Ex. C)

Request No. 1

Request No. 2

Request No. 12

All Documents and Communications
concerning Coinbase, the Coinbase Platform,
the Named Digital Assets, the Named Coinbase
Services, or the subject matter of theInvestigation or the Action, including all
Communications with any Person or entity notparty to this Action concerning the foregoing.

All Documents and Communications concerning All Documents and Communications
the Coinbase Platform, the Named Digitalconcerning Coinbase, the Coinbase Platform,
Assets, the Named Coinbase Services, or theor the Named Coinbase Services.
subject matter of the Investigation or the Action,
including all Communications with any Personor entity not party to this Action concerning theforegoing and any formal, informal, or voluntary
requests by you for documents or informationfrom any Person concerning the Coinbase
Platform, the Named Digital Assets, the Named
Coinbase Services, all Documents or
Communications you received in response tosuch formal, informal, or voluntary requests, andall analyses (including but not limited to any
regression and correlation, or event study
analysis) whether done by you or on your behalf
relating to the Coinbase Platform, any of theNamed Digital Assets or Named Coinbase
Services, the market performance of any of theNamed Digital Assets relative to other Digital
Assets or to public statements by Coinbase
and/or the alleged issuers or promoters of such
Named Digital Assets, and the size and value ofsales of any of the Named Digital Assets overtime.

Case 1:23-cv-04738-KPF Document 133-4 Filed 06/28/24 Page 3 of 19
Exhibit D
Page 2
Defendants’ Subpoena to Mr. Gary Gensler,
June 14 2024
(the “Subpoena”) (Ex. A)

Defendants’ Request for Production ofDocuments to SEC, April 23, 2024(“RFPs”) (Ex. B)

Defendants’ Subpoena to MIT,
June 4, 2023(“MIT Subpoena”) (Ex. C)

Request No. 2

Request No. 3

Documents and/or Communications sufficientto establish when you first learned of the
Coinbase Platform, the Named Digital Assets,
and the Named Coinbase Services, and when
you first learned that each of the Named Digital
Assets had been listed or was planned to belisted on the Coinbase Platform, without
limitation as to the applicable time period.

Documents and/or Communications sufficientto establish when the SEC first learned of the
Coinbase Platform, the Named Digital Assets,
and the Named Coinbase Services, and when the
SEC first learned that each of the Named Digital
Assets had been listed or was planned to belisted on the Coinbase Platform, without
limitation as to the applicable time period.

Request No. 3

Request No. 4

Request No. 3

All Communications with, and Documents
concerning Communications with, third parties(including any Government Entity) concerning
the application of federal laws, regulations, orrules (including, but not limited to, theSecurities Act of 1933 and the Securities
Exchange Act of 1934) to Digital Assets,
Digital Asset Platforms, or Staking as a Service.

All Communications with, and Documents
concerning Communications with, third parties(including any Government Entity) concerning
the application of federal laws, regulations, orrules (including, but not limited to, the Securities
Act of 1933 and the Securities Exchange Act of1934) to the Coinbase Platform, the Named
Digital Assets, or the Named Coinbase Services.

All Communications and Documents
concerning the application of federal laws,
regulations, or rules (including, but notlimited to, the Securities Act of 1933 and the
Securities Exchange Act of 1934) to Digital
Assets, Digital Asset Platforms, Staking, or
Staking as a Service, including whether and towhat extent any particular Digital Asset (e.g.,
FIL, DASH, ETH, XRP, DAO, SOL), ortransaction in any particular Digital Asset, is a“security” under the Securities Act of 1933
and/or the Securities Exchange Act of 1934.

Case 1:23-cv-04738-KPF Document 133-4 Filed 06/28/24 Page 4 of 19
Exhibit D
Page 3
Defendants’ Subpoena to Mr. Gary Gensler,
June 14 2024
(the “Subpoena”) (Ex. A)

Defendants’ Request for Production ofDocuments to SEC, April 23, 2024(“RFPs”) (Ex. B)

Defendants’ Subpoena to MIT,
June 4, 2023(“MIT Subpoena”) (Ex. C)

Request No. 4

Request No. 5

Request No. 11

All Communications and Documents
concerning any investigation by a Government
Entity concerning Digital Assets, Digital Asset
Platforms, or Staking as a Service.

All Communications with, and Documents
concerning Communications with, third parties(including any Government Entity) concerning
any investigation by a Government Entity
concerning Coinbase, the Coinbase Platform,
any of the Named Digital Assets, or any of theNamed Coinbase Services.

All Documents and Communications
concerning any investigation or litigation by aGovernment Entity concerning Digital
Assets, Digital Asset Platforms, or Staking asa Service.

Case 1:23-cv-04738-KPF Document 133-4 Filed 06/28/24 Page 5 of 19
Exhibit D
Page 4
Defendants’ Subpoena to Mr. Gary Gensler,
June 14 2024
(the “Subpoena”) (Ex. A)

Defendants’ Request for Production ofDocuments to SEC, April 23, 2024(“RFPs”) (Ex. B)

Defendants’ Subpoena to MIT,
June 4, 2023(“MIT Subpoena”) (Ex. C)

Request No. 5

Request No. 6

Request No. 7

All Communications with, and Documents
concerning Communications with, theFinancial Industry Regulatory Authority(FINRA) or any Government Entity, including
the SEC, or the CFTC, relating to theallegations in the Complaint, the Investigation,
Digital Assets, Digital Asset Platforms, or
Staking as a Service.

All Communications with, and Documents
concerning Communications with, any
Government Entity, including the CFTC, orwith the Financial Industry Regulatory Authority(FINRA), relating to the allegations in the
Complaint, the Investigation, Staking as aService, Digital Assets, or Digital Asset
Platforms, including but not limited to:a. Any factual Documents prepared for orby the Commission, any Commissioner,
and/or any Commission Staff or otherwise
in the Commission Staff’s custody orcontrol, relating to the regulatory and/or
enforcement authorities of the SEC and/or
another Government Entity, including thescope of regulatory and/or enforcement
authorities as between the SEC and another
Government Entity or potential or
proposed legislation relating to theregulatory and/or enforcement authoritiesof the SEC and/or another Government
Entity; andAll Communication and Documents
concerning the regulatory authority of the
Financial Industry Regulatory Authority(FINRA) or any Government Entity,
including the SEC or CFTC, with respect toDigital Assets, Digital Asset Platforms,
Staking, or Staking as a Service.

Case 1:23-cv-04738-KPF Document 133-4 Filed 06/28/24 Page 6 of 19
Exhibit D
Page 5
Defendants’ Subpoena to Mr. Gary Gensler,
June 14 2024
(the “Subpoena”) (Ex. A)

Defendants’ Request for Production ofDocuments to SEC, April 23, 2024(“RFPs”) (Ex. B)
b. Any external Communications by theCommission, any Commissioner, and/or any
Commission Staff, whether formal or informal,
relating to the regulatory and/or enforcement
authorities of the SEC and/or another
Government Entity, including the scope of
regulatory and/or enforcement authorities as
between the SEC and another Government
Entity or potential or proposed legislation
relating to the regulatory and/or enforcement
authorities of the SEC and/or another
Government Entity.

Request No. 6

Request No. 7

All Communications with, and Documents
concerning Communications with, journalists
or other employees or affiliates of news or
media organizations concerning Coinbase, thisAction, the Investigation, Digital Assets, Digital
Asset Platforms, or Staking as a Service.

All Communications with, and Documents
concerning Communications with, journalists orother employees or affiliates of news or media
organizations concerning Coinbase, this Action,
the Investigation, the Coinbase Platform, Digital
Asset Platforms, any of the Named Digital
Assets, or any of the Named Coinbase Services.

Defendants’ Subpoena to MIT,
June 4, 2023(“MIT Subpoena”) (Ex. C)

Case 1:23-cv-04738-KPF Document 133-4 Filed 06/28/24 Page 7 of 19
Exhibit D
Page 6
Defendants’ Subpoena to Mr. Gary Gensler,
June 14 2024
(the “Subpoena”) (Ex. A)

Defendants’ Request for Production ofDocuments to SEC, April 23, 2024(“RFPs”) (Ex. B)

Defendants’ Subpoena to MIT,
June 4, 2023(“MIT Subpoena”) (Ex. C)

Request No. 7

Request No. 8

All Communications with, and Documents
concerning Communications with, any allegeddevelopers of, alleged issuers of, or Persons
otherwise affiliated with any Digital Assets ortheir associated blockchain networks, including
any Documents or information provided to you
by any alleged developers of, alleged issuers of,or Persons otherwise affiliated with any Digital
Assets, their affiliated blockchain networks, ortheir counsel.

All Communications with, and Documents
concerning Communications with, any allegeddevelopers of, alleged issuers of, or Persons
otherwise affiliated with any of the Named
Digital Assets or their associated blockchain
networks, including any Documents orinformation provided to you by any allegeddevelopers of, alleged issuers of, or Persons
otherwise affiliated with any of the Named
Digital Assets, their affiliated blockchain
networks, or their counsel.

Request No. 8

Request No. 9

Request No. 13

All Documents and Communications
concerning any discussions, instructions, advice,inquiries or other Communications between
you and any Person concerning that Person’s
actual, planned, or potential business or otherrelationship with Coinbase or with a developerof or Person otherwise affiliated with Digital
Assets, Digital Asset Platforms, or Staking as aService.

All Documents and Communications concerning
any discussions, instructions, advice, inquiries, orother Communications between the SEC andany Person concerning that Person’s actual,planned, or potential business or otherrelationship with Coinbase.

All Documents and Communications
concerning any discussions, instructions,advice, inquiries or other Communications
between Professor Gensler and any Person
concerning that Person’s actual, planned, or
potential business or other relationship with adeveloper of or Person otherwise affiliatedwith Digital Assets, Digital Asset Platforms,
or Staking as a Service provider.

Request No. 9

Request No. 10

All Communications with, and Documents
concerning Communications with,
Prometheum, Inc., Martin Kaplan, Aaron
Kaplan, or Benjamin Kaplan; Securitize, Inc.;
Securitize LLC; or Securitize Markets, LLC.

Without limitation as to time period, allCommunications with, and Documents
concerning Communications with: Prometheum,
Inc., Martin Kaplan, Aaron Kaplan, or Benjamin
Kaplan; Securitize, Inc.; Securitize LLC; orSecuritize Markets, LLC.

Case 1:23-cv-04738-KPF Document 133-4 Filed 06/28/24 Page 8 of 19
Exhibit D
Page 7
Defendants’ Subpoena to Mr. Gary Gensler,
June 14 2024
(the “Subpoena”) (Ex. A)

Defendants’ Request for Production ofDocuments to SEC, April 23, 2024(“RFPs”) (Ex. B)

Request No. 10

Request No. 11

All Communications with, and Documents
concerning Communications with, IEX Group,
Inc. or Investors’ Exchange LLC concerning
Coinbase, Digital Assets, or Digital Asset
Platforms.

All Communications with, and Documents
concerning Communications with, IEX Group,
Inc. or Investors’ Exchange LLC concerning
Coinbase, Digital Assets, or Digital Asset
Platforms.

Request No. 11

Request No. 12

All Communications with, and Documents
concerning Communications with, any Person
concerning (i) any actual, planned, or potential
registration by that Person as an exchange,
broker, dealer, clearing agency, alternative
trading system, or custodian that would or
could facilitate the offer, sale, or custody ofDigital Assets or any product or service relating
to Digital Assets, including but not limited tothe means or viability of such registration; or (ii)the registration with the SEC of any exchangetraded product that holds or references Digital
Assets.

Without limitation as to time period, allCommunications with, and Documents
concerning Communications with, any Person
concerning: (i) any actual, planned, or potential
registration by that Person as an exchange,
broker, dealer, clearing agency, alternative
trading system, or custodian that would or could
facilitate the offer, sale, or custody of Digital
Assets or any product or service relating to
Digital Assets, including but not limited to therequirements and process for or viability of suchregistration; or (ii) the registration with the SECof any exchange- traded product that holds orreferences Digital Assets. For the purposes ofthis Request, “Person” includes but is not
limited to BlackRock, Inc., Valkyrie Investments
Inc., Valkyrie Digital Assets LLC, and ValkyrieFunds LLC.

Defendants’ Subpoena to MIT,
June 4, 2023(“MIT Subpoena”) (Ex. C)

Case 1:23-cv-04738-KPF Document 133-4 Filed 06/28/24 Page 9 of 19
Exhibit D
Page 8
Defendants’ Subpoena to Mr. Gary Gensler,
June 14 2024
(the “Subpoena”) (Ex. A)

Defendants’ Request for Production ofDocuments to SEC, April 23, 2024(“RFPs”) (Ex. B)

Defendants’ Subpoena to MIT,
June 4, 2023(“MIT Subpoena”) (Ex. C)

Request No. 12

Request No. 13

Request No. 8

All Documents and Communications
concerning (i) Report of Investigation Pursuant to
Section 21(a) of the Securities Exchange Act of 1934:
The DAO, Exchange Act Release No. 81207(July 25, 2017), (ii) the June 14, 2018 speech byformer SEC Director of the Division of
Corporation Finance William Hinman titled“Digital Asset Transactions: When Howey Met
Gary (Plastic)” (“Hinman Speech”), or (iii)
FinHub’s April 2019 “Framework for‘Investment Contract’ Analysis of Digital
Assets.”All Documents and Communications concerning(i) the June 14, 2018 speech by former SEC
Director of the Division of Corporation Finance
William Hinman titled “Digital Asset
Transactions: When Howey Met Gary (Plastic)”(“Hinman Speech”), (ii) FinHub’s April 2019
“Framework for ‘Investment Contract’ Analysis
of Digital Assets,” and (iii) Report of Investigation
Pursuant to Section 21(a) of the Securities Exchange
Act of 1934: The DAO, Exchange Act Release
No. 81207 (July 25, 2017), including but notlimited to all Communications with any
blockchain network or representative thereof
and all Documents and Communications,
including internal Communications, analyses,
and other materials, that were prepared,
reviewed, or relied upon by any current orformer SEC Commissioner, Division Director,
or Staff member in reaching the conclusions andobservations reflected in these statements,
including drafts of the statements and analyses
prepared or commented upon by SEC Staff.

All Documents and Communications
concerning (i) Report of Investigation Pursuant to
Section 21(a) of the Securities Exchange Act of1934: The DAO, Exchange Act Release No.
81207 (July 25, 2017), (ii) the June 14, 2018speech by former SEC Director of theDivision of Corporation Finance William
Hinman titled “Digital Asset Transactions:
When Howey Met Gary (Plastic)” (“Hinman
Speech”), or (iii) FinHub’s April 2019
“Framework for ‘Investment Contract’Analysis of Digital Assets.”

Case 1:23-cv-04738-KPF Document 133-4 Filed 06/28/24 Page 10 of 19
Exhibit D
Page 9
Defendants’ Subpoena to Mr. Gary Gensler,
June 14 2024
(the “Subpoena”) (Ex. A)

Defendants’ Request for Production ofDocuments to SEC, April 23, 2024(“RFPs”) (Ex. B)

Defendants’ Subpoena to MIT,
June 4, 2023(“MIT Subpoena”) (Ex. C)

Request No. 13

Request No. 14

Request No. 9

All Documents and Communications
concerning any public statements by FINRA or
any Government Agency, including but notlimited to the SEC and CFTC, concerning
Digital Assets, Digital Asset Platforms, Staking,or Staking as a Service.

All Documents and Communications concerning
any public statements by the Commission or any
SEC Division, Commissioner, or Staff member
concerning the Named Digital Assets or Digital
Asset Platforms, including but not limited to any
internal or external Communications concerning
such public statements and any analyses or othermaterials that were prepared or relied upon inreaching the conclusions and observations
reflected in such public statements, including allDocuments and Communications reflecting the
Persons involved in such Communications or
analyses.

All Documents and Communications
concerning any public statements by any
Government Entity, including but not limited
to the SEC and any SEC Division,Commissioner, or Staff member, concerning
Digital Assets, Digital Asset Platforms,
Staking, or Staking as a Service.

See also Request No. 6 above.
Request No. 14

Request No. 15

Request No. 4

All Documents and Communications
concerning whether Digital Assets ortransactions in Digital Assets are “investment
contract[s]” within the meaning of the
Securities Act of 1933 or the Securities
Exchange Act of 1934, including Documents
and Communications concerning theapplication of SEC v. W.J. Howey Co., 328 U.S.
293 (1946), to Digital Assets or transactions in
Digital Assets.

All Documents and Communications concerningwhether Digital Assets or transactions in Digital
Assets are “investment contract[s]” within themeaning of the Securities Act of 1933 or the
Securities Exchange Act of 1934, includingDocuments and Communications concerning
the application of SEC v. W.J. Howey Co., 328
U.S. 293 (1946), to Digital Assets or transactions
in Digital Assets.

All Documents and Communications
concerning whether Digital Assets ortransactions in Digital Assets are “investment
contract[s]” within the meaning of the
Securities Act of 1933 or the Securities
Exchange Act of 1934, including Documents
and Communications concerning theapplication of SEC v. W.J. Howey Co., 328
U.S. 293 (1946), to Digital Assets ortransactions in Digital Assets.

Case 1:23-cv-04738-KPF Document 133-4 Filed 06/28/24 Page 11 of 19
Exhibit D
Page 10
Defendants’ Subpoena to Mr. Gary Gensler,
June 14 2024
(the “Subpoena”) (Ex. A)

Defendants’ Request for Production ofDocuments to SEC, April 23, 2024(“RFPs”) (Ex. B)

Defendants’ Subpoena to MIT,
June 4, 2023(“MIT Subpoena”) (Ex. C)

Request No. 15

Request No. 16

Request No. 5

All Documents and Communications
concerning (i) the role of a Digital Asset’s
ecosystem in the application of the federal
securities laws, including but not limited todetermining whether transactions in an asset
constitute transactions in investment contracts
or other securities or (ii) the ecosystems of theNamed Digital Assets, including, but notlimited to, the components of such ecosystems,
the identities of the alleged developers, issuers,
and promoters affiliated with such ecosystems.

All Documents and Communications concerning(i) the role of a Digital Asset’s ecosystem in theapplication of the federal securities laws to that
asset, including but not limited to determining
whether transactions in an asset constitutetransactions in investment contracts or othersecurities; or (ii) the ecosystems of the Named
Digital Assets, including but not limited to thecomponents of such ecosystems, the identities of
the alleged developers, issuers, and promotersaffiliated with such ecosystems, and any
decentralized applications or business platforms
related to such ecosystems.

All Documents and Communications
concerning (i) the role of a Digital Asset’s
ecosystem in the application of the federal
securities laws, including but not limited todetermining whether transactions in an asset
constitute transactions in investment
contracts or other securities or (ii) the
ecosystems of the Named Digital Assets,
including, but not limited to, the componentsof such ecosystems, the identities of thealleged developers, issuers, and promotersaffiliated with such ecosystems.

Request No. 16

Request No. 17

All Documents and Communications relating
to the SEC’s assertion during Oral Argumentthat when someone “purchases tokens like [theNamed Digital Assets], like these 13 examples .
. . they are investing into the network behindit”—that is, “the ecosystem.” See Jan. 17, 2024
Hr’g Tr. at 21:20-22:5; see also id. at 57:17-21.

All Documents and Communications relating to
your assertion during Oral Argument that whensomeone “purchases tokens like [the Named
Digital Assets], like these 13 examples . . . they
are investing into the network behind it”—that
is, “the ecosystem.” See Jan. 17, 2024 Hr’g Tr. at
21:20-22:5; see also id. at 57:17-21.

Request No. 17

Request No. 18

Request No. 6

All Documents and Communications relating
to Bitcoin’s ecosystem or lack thereof.

All Documents and Communications relating to(i) Bitcoin’s ecosystem; or (ii) your assertion
during Oral Argument that “there’s noecosystem behind” Bitcoin. See Jan. 17, 2024
Hr’g Tr. at 30:7-15.

All Documents and Communications relating
to Bitcoin’s ecosystem or lack thereof.

Case 1:23-cv-04738-KPF Document 133-4 Filed 06/28/24 Page 12 of 19
Exhibit D
Page 11
Defendants’ Subpoena to Mr. Gary Gensler,
June 14 2024
(the “Subpoena”) (Ex. A)

Defendants’ Request for Production ofDocuments to SEC, April 23, 2024(“RFPs”) (Ex. B)

Defendants’ Subpoena to MIT,
June 4, 2023(“MIT Subpoena”) (Ex. C)

Request No. 18

Request No. 19

Request No. 10

All Documents and Communications
concerning the size, value, growth, or
importance of the Digital Asset industry or
Digital Asset Platforms.

All Documents and Communications concerning All Documents and Communications
concerning the size, value, growth, orthe size, value, growth, or importance of theDigital Asset industry or Digital Asset Platforms. importance of the Digital Asset industry or
Digital Asset Platforms.

Request No. 19

Request No. 22

All Documents and Communications
concerning potential or proposed legislation
relating to the regulatory and/or enforcement
authorities of the SEC and/or another
Government Entity with respect to Digital
Assets or Digital Asset Platforms.

All Documents and Communications concerningpotential or proposed legislation relating to theregulatory and/or enforcement authorities of the
SEC and/or another Government Entity withrespect to Digital Assets or Digital Asset
Platforms.

Request No. 20

Request No. 23

All Documents and Communications
concerning any meeting or call involving one ormore Commissioner concerning Coinbase, theCoinbase Platform or any of the Named Digital
Assets or Named Coinbase Services, including alist of the attendees of any such meeting or call.

All Documents and Communications concerning
any meeting or call involving one or more
Commissioner concerning Coinbase, theCoinbase Platform, or any of the Named Digital
Assets or Named Coinbase Services, including alist of the attendees of any such meeting or call.

Case 1:23-cv-04738-KPF Document 133-4 Filed 06/28/24 Page 13 of 19
Exhibit D
Page 12
Defendants’ Subpoena to Mr. Gary Gensler,
June 14 2024
(the “Subpoena”) (Ex. A)

Defendants’ Request for Production ofDocuments to SEC, April 23, 2024(“RFPs”) (Ex. B)

Request No. 21

Request No. 26

All Documents and Communications
concerning the following litigation matters:
a. SEC v. Kik Interactive Inc., Case No. 19-cv5244 (S.D.N.Y.);b. SEC v. Telegram Grp. Inc. and TON Issuer
Inc., Case No. 19-cv-9439 (S.D.N.Y.);
c. SEC v. Ripple Labs, Inc. et al., Case No.
20-cv-10832 (S.D.N.Y.);
d. SEC v. LBRY, Inc., Case No. 21-cv-260(D.N.H.);e. SEC v. Wahi et al., Case No. 2:22-cv-1009(W.D. Wash.);f. SEC v. Binance Holdings Ltd. et al., CaseNo. 23-cv-1599 (D.D.C.);
g. SEC v. Bittrex, Inc. et al., Case No. 23-cv580 (W.D. Wash.);h. SEC v. Genesis Global Capital, LLC and
Gemini Tr. Co., LLC,
Case No. 23-cv-287 (S.D.N.Y.);
i. SEC v. Terraform Labs PTE Ltd. and Kwon,
Case No. 23-cv-1346 (S.D.N.Y.);
j. SEC v. Payward, Inc. and Payward Ventures,Inc., Case No. 23-cv-6003 (N.D. Cal.); andk. SEC v. Payward Ventures, Inc. (D/B/A
Kraken) and Payward Trading, Ltd. (D/B/A
Kraken), Case No. 23-cv-588 (N.D. Cal.).

To the extent such Documents andCommunications concern any Communications,analyses, or other materials regarding Coinbase,
any of the Named Digital Assets, or any of theNamed Coinbase Services, your investigative
files in connection with any investigations by theCommission or Commission Staff relating to thefollowing litigation matters and all Documents
and Communications produced to or by theCommission in discovery in the following
litigation matters:
a. SEC v. Kik Interactive Inc., Case No. 19-cv5244 (S.D.N.Y.);b. SEC v. Telegram Grp. Inc. and TON Issuer
Inc., Case No. 19-cv-9439 (S.D.N.Y.);
c. SEC v. Ripple Labs, Inc. et al., Case No. 20cv-10832 (S.D.N.Y.);
d. SEC v. LBRY, Inc., Case No. 21-cv-260(D.N.H.);e. SEC v. Wahi et al., Case No. 2:22-cv-1009(W.D. Wash.);f. SEC v. Binance Holdings Ltd. et al., Case No.
23-cv-1599 (D.D.C.);
g. SEC v. Bittrex, Inc. et al., Case No. 23-cv580 (W.D. Wash.);h. SEC v. Genesis Global Capital, LLC and
Gemini Tr. Co., LLC,
Case No. 23-cv-287 (S.D.N.Y.);

Defendants’ Subpoena to MIT,
June 4, 2023(“MIT Subpoena”) (Ex. C)

Case 1:23-cv-04738-KPF Document 133-4 Filed 06/28/24 Page 14 of 19
Exhibit D
Page 13
Defendants’ Subpoena to Mr. Gary Gensler,
June 14 2024
(the “Subpoena”) (Ex. A)

Defendants’ Request for Production ofDocuments to SEC, April 23, 2024(“RFPs”) (Ex. B)
i. SEC v. Terraform Labs PTE Ltd. and Kwon,
Case No. 23-cv-1346 (S.D.N.Y.);
j. SEC v. Payward, Inc. and Payward Ventures,Inc., Case No. 23-cv-6003 (N.D. Cal.); andk. SEC v. Payward Ventures, Inc. (D/B/A
Kraken) and Payward Trading, Ltd. (D/B/A
Kraken), Case No. 23-cv-588 (N.D. Cal.).

Request No. 22

Request No. 27

All Documents and Communications
concerning Coinbase’s direct public offering or
registration statement on Form S-1 (including
any drafts of such registration statement),
including but not limited to Documents andCommunications concerning the application or
potential application of the federal securities
laws to Coinbase’s business or operations.

All Documents and Communications concerning
Coinbase’s direct public offering or registration
statement on Form S-1 (including any drafts ofsuch registration statement), including but notlimited to Documents and Communications
concerning the application or potential
application of the federal securities laws to
Coinbase’s business or operations.

Defendants’ Subpoena to MIT,
June 4, 2023(“MIT Subpoena”) (Ex. C)

Case 1:23-cv-04738-KPF Document 133-4 Filed 06/28/24 Page 15 of 19
Exhibit D
Page 14
Defendants’ Subpoena to Mr. Gary Gensler,
June 14 2024
(the “Subpoena”) (Ex. A)

Defendants’ Request for Production ofDocuments to SEC, April 23, 2024(“RFPs”) (Ex. B)

Request No. 23

Request No. 28

All Documents and Communications
concerning your public remarks about Digital
Assets, Digital Asset Platforms, and Staking as aService, without limitation as to the applicabletime period, including but not limited to:a. Your May 6, 2021 testimony before theUnited States House Committee on
Financial Services;b. Your May 7, 2021 appearance on CNBC;
c. Your May 26, 2021 testimony before theUnited States House Subcommittee on
Financial Services and General
Government;
d. Your August 3, 2021 remarks before the
Aspen Security Forum;e. Your September 21, 2021 interview with
the Washington Post;
f. Your October 5, 2021 testimony before
the United States House Committee on
Financial Services;g. Your August 19, 2022 opinion piece
published by the Wall Street Journal, titled“The SEC Treats Crypto Like the Rest of
the Capital Markets”;
h. Your December 7, 2022 interview with
Yahoo! Finance;

All Documents and Communications concerning
SEC Chair Gary Gensler’s public remarks about
Digital Assets, Digital Asset Platforms, andStaking as a Service, without limitation as to theapplicable time period, including but not limited
to:a. Chair Gensler’s May 6, 2021 testimony
before the United States House Committee
on Financial Services;b. Chair Gensler’s May 7, 2021 appearanceon CNBC;c. Chair Gensler’s May 26, 2021 testimony
before the United States House
Subcommittee on Financial Services andGeneral Government;
d. Chair Gensler’s August 3, 2021 remarks
before the Aspen Security Forum;e. Chair Gensler’s September 21, 2021
interview with the Washington Post;
f. Chair Gensler’s October 5, 2021 testimony
before the United States House Committee
on Financial Services;g. Chair Gensler’s August 19, 2022 opinion
piece published by the Wall Street Journal,
titled “The SEC Treats Crypto Like the Restof the Capital Markets”;
h. Chair Gensler’s December 7, 2022
interview with Yahoo! Finance;

Defendants’ Subpoena to MIT,
June 4, 2023(“MIT Subpoena”) (Ex. C)

Case 1:23-cv-04738-KPF Document 133-4 Filed 06/28/24 Page 16 of 19
Exhibit D
Page 15
Defendants’ Subpoena to Mr. Gary Gensler,
June 14 2024
(the “Subpoena”) (Ex. A)
i. Your interview with Ankush Khardori, as
reported in Intelligencer’s February 23,
2023 article, “Can Gary Gensler Survive
Crypto Winter? D.C.’s Top Financial Cop
on Bankman-Fried Blowback”;
j. Your interview with CNBC’s Squawk Box,as reported in CNBC’s February 10, 2023
article, “SEC’s Gary Gensler on Kraken
Staking Settlement: Other Crypto Platforms
Should take Note of This”;
k. Your March 29, 2023 testimony before
the United States House Appropriations
Subcommittee on Financial Services andGeneral Government;l. Your statements regarding Digital Assets
during “Office Hours with Gary Gensler”
including but not limited to the episodes
from August 16, 2021, July 28, 2022,
August 4, 2022, October 3, 2022, February
9, 2023, and April 27, 2023;
m. Your April 18, 2023 testimony before
the United States House Committee on
Financial Services;n. Your interview with CNBC’s Squawk
Box, as reported in CNBC’s June 6, 2023
article, “SEC Chair Gensler doubts theneed for more digital currency”;

Defendants’ Request for Production ofDocuments to SEC, April 23, 2024(“RFPs”) (Ex. B)
i. Chair Gensler’s interview with Ankush
Khardori, as reported in Intelligencer’s
February 23, 2023 article, “Can Gary
Gensler Survive Crypto Winter? D.C.’s Top
Financial Cop on Bankman-Fried
Blowback”;
j. Chair Gensler’s interview with CNBC’s
Squawk Box, as reported in CNBC’s February
10, 2023 article, “SEC’s Gary Gensler on
Kraken Staking Settlement: Other Crypto
Platforms Should take Note of This”;
k. Chair Gensler’s March 29, 2023 testimony
before the United States House
Appropriations Subcommittee on Financial
Services and General Government;l. Chair Gensler’s statements regarding
Digital Assets during “Office Hours with
Gary Gensler” including but not limited tothe episodes from August 16, 2021, July 28,
2022, August 4, 2022, October 3, 2022,
February 9, 2023, and April 27, 2023;
m. Chair Gensler’s April 18, 2023 testimony
before the United States House Committee
on Financial Services;n. Chair Gensler’s interview with CNBC’s
Squawk Box, as reported in CNBC’s June 6,2023 article, “SEC Chair Gensler doubts theneed for more digital currency”;

Defendants’ Subpoena to MIT,
June 4, 2023(“MIT Subpoena”) (Ex. C)

Case 1:23-cv-04738-KPF Document 133-4 Filed 06/28/24 Page 17 of 19
Exhibit D
Page 16
Defendants’ Subpoena to Mr. Gary Gensler,
June 14 2024
(the “Subpoena”) (Ex. A)
o. Your interview with the Wall Street
Journal, as reported in the June 8, 2023
article, “SEC’s Gary Gensler Had Crypto in
His Sights for Years. Now He’s Suing
Binance and Coinbase.”;p. Your June 8, 2023 remarks before thePiper Sandler Global Exchange & Fintech
Conference;
q. Your interview with the Wall Street
Journal, as broadcast in the June 14, 2023
podcast episode, “SEC Chair Gary Gensler
on His Crypto Crackdown”;
r. Your September 12, 2023 testimony
before the United States Senate Committeeon Banking, Housing, and Urban Affairs;s. Your September 27, 2023 testimony
before the United States House Committee
on Financial Services; andt. Your statements concerning Digital
Assets or Digital Asset Platforms madeprior to your tenure as SEC Chair.

Defendants’ Request for Production ofDocuments to SEC, April 23, 2024(“RFPs”) (Ex. B)
o. Chair Gensler’s interview with the WallStreet Journal, as reported in the June 8, 2023
article, “SEC’s Gary Gensler Had Crypto in
His Sights for Years. Now He’s Suing
Binance and Coinbase.”;p. Chair Gensler’s June 8, 2023 remarks
before the Piper Sandler Global Exchange &Fintech Conference;q. Chair Gensler’s interview with the WallStreet Journal, as broadcast in the June 14,2023 podcast episode, “SEC Chair Gary
Gensler on His Crypto Crackdown”;
r. Chair Gensler’s September 12, 2023
testimony before the United States Senate
Committee on Banking, Housing, and Urban
Affairs;s. Chair Gensler’s September 27, 2023
testimony before the United States House
Committee on Financial Services; andt. Chair Gensler’s statements concerning
Digital Assets or Digital Asset Platforms
made prior to his tenure as SEC Chair.

Defendants’ Subpoena to MIT,
June 4, 2023(“MIT Subpoena”) (Ex. C)

Case 1:23-cv-04738-KPF Document 133-4 Filed 06/28/24 Page 18 of 19
Exhibit D
Page 17
Defendants’ Subpoena to Mr. Gary Gensler,
June 14 2024
(the “Subpoena”) (Ex. A)

Defendants’ Request for Production ofDocuments to SEC, April 23, 2024(“RFPs”) (Ex. B)

Request No. 24

Request No. 29

All Documents and Communications
concerning the Petition for Rulemaking
submitted by Coinbase on July 21, 2022, anycomment letters submitted by Coinbase
concerning its Petition for Rulemaking, or theCommission’s Order denying Coinbase’s
Petition for Rulemaking issued on December
15, 2023, including any Communications withany third parties (including any Government
Entity) concerning Coinbase’s Petition for
Rulemaking or the Commission’s Order.

Without limitation as to time period, allDocuments and Communications concerning
the Petition for Rulemaking submitted by
Coinbase on July 21, 2022, any comment letterssubmitted by Coinbase concerning its Petition
for Rulemaking, or the Commission’s Orderdenying Coinbase’s Petition for Rulemaking
issued on December 15, 2023, including any
Communications with any third parties(including any Government Entity) concerning
Coinbase’s Petition for Rulemaking or theCommission’s Order.

Request No. 25

Request No. 30

All Documents and Communications
concerning the comment letter sent to
Coinbase Global, Inc. by the Commission dated
September 22, 2023 regarding Coinbase Global,
Inc.’s Form 10-K for the year ended December
31, 2022, Form 10-Q for the period ended June30, 2023, Form 8-K filed January 10, 2023, andForm 8-K filed May 4, 2023 (File No. 00140289) and any subsequent correspondence
relating thereto.

Without limitation as to time period, allDocuments and Communications concerning
the comment letters sent to Coinbase Global,
Inc. by the Commission dated September 22,
2023 and April 17, 2024 regarding Coinbase
Global, Inc.’s Form 10-K for the year ended
December 31, 2023, Form 10-K for the year
ended December 31, 2022, Form 10-Q for theperiod ended June 30, 2023, Form 8-K filed
January 10, 2023, and Form 8-K filed May 4,2023 (File No. 001-40289), and any subsequentcorrespondence relating thereto.

Defendants’ Subpoena to MIT,
June 4, 2023(“MIT Subpoena”) (Ex. C)

Case 1:23-cv-04738-KPF Document 133-4 Filed 06/28/24 Page 19 of 19
Exhibit D
Page 18
Defendants’ Subpoena to Mr. Gary Gensler,
June 14 2024
(the “Subpoena”) (Ex. A)

Defendants’ Request for Production ofDocuments to SEC, April 23, 2024(“RFPs”) (Ex. B)

Defendants’ Subpoena to MIT,
June 4, 2023(“MIT Subpoena”) (Ex. C)

Request No. 26
All Documents and Communications
concerning your purchase, use, ownership, ortrading of Digital Assets or use of Digital Asset
Platforms.
Request No. 27

Request No. 1

All Documents and Communications
concerning your courses “FinTech: Shaping the
Financial World” and “Blockchain and Money,”
including but not limited to syllabi, speaking
notes, presentations, distributed materials,
assignments, and any classroom recordings.

All Documents and Communications
concerning Professor Gary Gensler’s courses“FinTech: Shaping the Financial World” and“Blockchain and Money,” including but notlimited to syllabi, speaking notes,
presentations, distributed materials (whetherin person, through the Canvas system, orotherwise), assignments, and any classroom
recordings.

Request No. 28

Request No. 2

All Documents and Communications
concerning your work with the Massachusetts
Institute of Technology’s Digital Currency
Initiative, including any speeches, publications,or reports concerning Digital Assets, Digital
Asset Platforms, Staking, or Staking as aService.

All Documents and Communications
concerning Professor Gary Gensler’s workwith Your Digital Currency Initiative,
including speeches, publications, and reports
concerning Digital Assets, Digital Asset
Platforms, Staking, or Staking as a Service.

Case 1:23-cv-04738-KPF Document 133-5 Filed 06/28/24 Page 1 of 46

Exhibit E

Case 1:23-cv-04738-KPF Document 133-5 Filed 06/28/24 Page 2 of 46

UNITED STATES DISTRICT COURTFOR THE DISTRICT OF NEW HAMPSHIRE

1
2
3
4
5
6
7
8

* * * * * * * * * * * * * * * * * **SECURITIES AND EXCHANGE*
COMMISSION,** No. 1:21-cv-00260-PB
Plaintiff.
* February 23, 2022
* 2:00 p.m.
v.
***
LBRY, INC.,*

9
10

Defendant.
* * * * * * * * * * * * * * * * * *11
12

TRANSCRIPT OF MOTION HEARING AND STATUS CONFERENCEHELD VIA VIDEOCONFERENCEBEFORE THE HONORABLE PAUL J. BARBADORO

13
14
APPEARANCES:
15
16

For the Plaintiff:

Peter Moores, Esq.
Securities and Exchange Commission

For the Defendant:

Keith Miller, Esq.
Perkins Coie LLP

17
18
19
Timothy John McLaughlin, Esq.
Shaheen & Gordon

20
21
22
23
24
25

Court Reporter:

Brenda K. Hancock, RMR, CRR
Official Court Reporter
United States District Court
55 Pleasant Street
Concord, NH 03301(603) 225-1454

Case 1:23-cv-04738-KPF Document 133-5 Filed 06/28/24 Page 3 of 46
2

1

P

2

THE CLERK:

R

O

C

E

E

D

I

N

G

S

This Court is in session and has for

3

consideration a motion hearing and status conference in civil

4

matter 21-cv-260-PB, U.S. Securities and Exchange Commission

5

versus LBRY, Inc.

6

THE COURT:

I've been informed that some members of7

the public have requested access to this hearing.

8

granted those requests.

9

or counsel need to keep their cameras off and their microphones

10

muted throughout the hearing; and of, of course, it is11

forbidden to make any recording of this proceeding.

12

Okay.

We've

People who are not admitted as parties

So, I have a Motion to Quash, I have a Motion

13

to Modify Scheduling Order, and I have a Motion for Protective

14

Order that's not ripe yet that I won't consider, unless the15parties jointly ask me to.

16

Let's start with the Motion to Quash.

17

SEC on that motion.

18

MR. MOORES:

Thank you, your Honor.

I'll hear thePeter Moores from19

the Securities and Exchange Commission.

We filed the Motion to20

Quash the subpoena for the testimony of Director Bill Hinman.

21

We believe that the Morgan Doctrine is what controls here and22that Director Hinman is a high-ranking governmental official

23

afforded the protections of the Morgan Doctrine.

24

sort of burden to take Mr. or Director Hinman's deposition

25

switches over to the defendant here who is seeking the

As such, theCase 1:23-cv-04738-KPF Document 133-5 Filed 06/28/24 Page 4 of 46
31

deposition to establish that extraordinary circumstances are2

present to warrant the circumstance of taking his deposition.

3

The test under the Morgan Doctrine for whether or not there are4

exceptional circumstances has been phrased in a couple of5

different ways, but essentially that the information sought is6

not obtainable elsewhere and it is personally and uniquely

7

possessed by Director Hinman in this case; and, two, the second

8prong, is that the information sought is essential, not merely

9

relevant to in this case the LBRY's case.

10

Many courts actually have a third prong, and, in fact,

11

the Ninth Circuit In Re:

12

was cited on February 4th, 2022, has a third prong that there13

has to be a showing of agency bad faith, and I don't believe

14

that that has been sort of argued here per se, but LBRY in its

15

papers has never suggested or offered that there is agency bad

16faith and would fail under that third prong of the test.

17

at least on the papers both parties, I believe, have argued

18

sort of the first and second prong that I identified, and we'll

19

go through that today, your Honor.

20

U.S. Department of Education, which

But

As I said, it is LBRY's burden to show these21

extraordinary circumstances.

LBRY has not shown that in its

22

papers.

23

Hinman does not possess any knowledge of the case here.

24

doesn't possess any knowledge about LBRY, doesn't possess any

25

knowledge about LBRY's offer and sales, nor LBC, which is LBRY

And, first, what LBRY has conceded is that Director
He

Case 1:23-cv-04738-KPF Document 133-5 Filed 06/28/24 Page 5 of 46
41

credits, token in question.

2

THE COURT:

Let's back up, though, because I do think3

they challenge your contention that he's a high-ranking

4

government official with a position -- formerly held a position

5

that would qualify for the privilege that you're invoking.

6

I've collected the cases that I can find, and certainly there7

are cases where a court says this person is a high-ranking

8

official, this person is not a high-ranking official, but what9

is the principal basis on which I should make the distinction

10

between someone who is sufficiently high ranking to be covered

11

by the privilege?

12

MR. MOORES:Your Honor, a lot of those cases that I

13think we've all collected don't articulate a specific test.

I

14

think that the case that -- one of the cases that LBRY has

15

cited says it has to be the sort of apex of the agency, but the16

proof of the cases throughout have shown that it doesn't have17

to be sort of the highest member of an executive agency, and so18

I think it ultimately falls back as to the sort of first19

principles of why the executive privilege or why that20

protection is afforded, which is essentially that a member of21

the sort of Executive Branch is not to be hauled into court to22

testify or to be deposed based upon their decision-making

23

processes.

24of the second highest in terms of he's the head of the25division, is in charge of a lot of sort of internal decision

Here we have Director Hinman who is, reports sortCase 1:23-cv-04738-KPF Document 133-5 Filed 06/28/24 Page 6 of 46
51

making at the Commission here and advising not only he's also2

an attorney -- so advising as to policy as well as

3

attorney-client privilege up to the members of the Commission

4

itself.

5

including the Navellier case that we cited, where it upheld

6that a division director was a high-ranking governmental

7

official.

So, I believe that he qualifies in other cases,

THE COURT:8

Was that issue challenged by the plaintiff

I know that the judge applied the privilege and9in Navellier?

10

concluded that the official was a high-ranking official, but I

11

didn't see in their evidence that that was a litigated point, a

12

disputed point.

Can you help me out on that?

MR. MOORES:

13

So, with respect to whether or not the

14

Morgan Doctrine applied, it was challenged, the Morgan Doctrine

15

specifically applied.
THE COURT:16

Did they make an argument to the judge

17that the deponent was not a high-ranking government official

18

under Morgan?
MR. MOORES:

19
20

My recollection, your Honor, is it atleast wasn't sort of foremost in the judge's ruling.
THE COURT:21

She didn't really explain.

I agree she

22

applied it to someone at the same rank as we have here.

23

didn't see in her decision that she was evaluating competing24

claims by the parties and coming down in a particular way on

25

it.

So, I think it clearly applies to people likeI justCase 1:23-cv-04738-KPF Document 133-5 Filed 06/28/24 Page 7 of 46
61

cabinet-level secretaries, it clearly applies to people like2

mayors of a city, and it has been widely applied to people who3

are not at the very top of the agency that they're heading, and4

I've got examples, and I can draw analogies, but I don't find5

in any of the case law a detailed discussion of the way in6which a judge would go about determining whether someone is or7

is not a high-ranking official.

8

The weakness of these kind of categorical approaches

9

to problems are that you don't get to weigh competing

10

considerations and a totality of relevant circumstances

11

sometimes that you would like to be able to do.

12here it appears that what LBRY wants to do is question the13former Director not about any facts about this particular case14that that person has knowledge of, because you've proffered

15

that he has no knowledge about this case, was not involved in

16

it, and has nothing to contribute based on personal knowledge

17

about it.

18

this person to gain access to his thought process about how the19

general issue of how the Howey test applies to digital

20

currencies works, and that seems to be matters of which you

21

would ordinarily not get a deposition for reasons completely

22

unrelated to the Morgan Doctrine.

23

either is simply not calculated to lead to any kind of relevant

24

information at all, or it's protected by the deliberative

25

process privilege.

For example,

Instead, it appears that LBRY is trying to depose

It's the kind of thing that

So, I think that's part of the struggle

Case 1:23-cv-04738-KPF Document 133-5 Filed 06/28/24 Page 8 of 46
7

1

here.

2

It is just not apparent to me what this person has to3

say that could be at all helpful to me in resolving the case,4

but I did want your thoughts on how I would go about

5

distinguishing between whether someone is a high-ranking

6

official or not.

7

let me know.

8

If you've got any other thoughts about it,

MR. MOORES:

Yeah, your Honor.

I think that -- first9of all, I agree with a lot of what you just said about in terms

10of the import of what Director Hinman's thoughts are and what

11

LBRY is seeking here, and I do think that there is a12

relationship between the Morgan Doctrine and sort of13

deliberative process privilege, which I think you were touching

14

a little bit upon, in terms of seeking the mental

15

decision-making processes of the deponent, and I think that16

when you have someone who is cloaked with that decision-making

17

authority, which is, I believe, the sort of true import of why

18

LBRY is seeking Director Hinman, himself, they haven't noticed

19

somebody who is sort of lower on the staff or even a sort of,20

you know, a low member of the staff.

21

himself, who is cloaked with that authority of decision making

22

on behalf of the Division of Corporation Finance, and so I

23think sort of the reasons that LBRY is seeking Director

24

Hinman's point of fact that he would be protected under the25

Morgan Doctrine itself.

They wanted the Director

Case 1:23-cv-04738-KPF Document 133-5 Filed 06/28/24 Page 9 of 46
81

THE COURT:

Although, the Morgan Doctrine appears to2

be, rather than the deliberative process privilege, appears to3

be focused primarily on the need to ensure that high-ranking

4

government officials aren't deluged with deposition requests,

5

because they supervise so many cases and deal with so many

6

issues that they should not be subjected to deposition as a7routine matter primarily because of the burden that it inflicts

8

on the person holding the position either as a current officer

9

or former official.

10

motivation for the doctrine.

11

try to construct a test you would say, well, let's interpret

12

what a high-ranking official is in light of why we have the13rule, and we seem to have the rule because someone who is14

sufficiently high up in a governmental structure can find their

15

lives completely consumed with testifying in depositions of

16routine cases.

17

oversees hundreds of matters that are potentially the subject

18of litigation at any one time, and if you do not apply the19Morgan Doctrine to someone like this you will overburden the20

holders of that office both while they currently hold the21

office and after they complete their government service and22

move on to other jobs.

23

trying to distinguish when someone who is sufficiently high24

ranking to qualify.

25

MR. MOORES:

So, that seems to be the primarySo, ine one sense, if you were toI think your argument would be this person

So, that would seem to be one way ofYour Honor, I agree.

In terms of theCase 1:23-cv-04738-KPF Document 133-5 Filed 06/28/24 Page 10 of 46
91

Division of Corporation Finance, it oversees the registration2of security offerings that, you know, equate to trillions of3

dollars and hundreds, if not thousands, of various issuers.

4

So, to the extent that there was ever a decision on the5registration that would involve Director Hinman, just with6

respect to digital assets this is the third case in which

7

Director Hinman has been at least noticed, if not more, and I'm

8just basing this upon when there have been motions to quash in

9

the Kik case, which we cited in our briefs, and the Ripple

10matter, which I'm sure you're going to hear at least about from

11

LBRY.

12

to testify as to his internal decision-making process with13

respect to digital assets and --14

So, this is the third time in which he's been hauled in

THE COURT:One of the concerns, potential concerns,

15

about extending the doctrine too far down into an organization

16

is that you're unnecessarily insulating people from having to17

provide information about things that might be very important18

to a particular litigant.

19

the Director's position is a witness to allegations of sexual

20

harassment in the workplace.

21

availability of that person for deposition would be highly

22

important notwithstanding his or her high position in23

government, but the way the privilege works, the Morgan

24

Doctrine works under those circumstances it would be relatively

25

easy for someone in LBRY's position to demonstrate that the

Say, for example, a person holding

That would be a case in which theCase 1:23-cv-04738-KPF Document 133-5 Filed 06/28/24 Page 11 of 46
101

Director, although holding a high-ranking position, should not2

be immune from having to cooperate because they have direct3

personal knowledge and they are uniquely positioned to4contribute in an important way to the case, not simply because

5

they're high up in a chain, where the actual work is being done

6

by people many levels below.

7

me that we don't need to be, in determining what is high enough8

for the Morgan Doctrine to apply, we don't need to be overly

9

concerned that will insulate people from being accountable for10

their actions to the extent there's some reason to believe that11

the person has engaged in conduct that might implicate them in

12some kind of civil liability, or that they're a witness to

13

conduct.

14

fit within the exception.

15

That's something that suggests toThen, even if the Morgan Doctrine applied, it would

MR. MOORES:

Yes, your Honor.

I believe the16

hypothetical you provided does not really touch upon a lot of17

the main primary concerns of the Morgan Doctrine.

18

it's an issue of sexual assault, that seems potentially a more

19of a one-off situation that wouldn't overburden the20

governmental official as well as something that's, you know,

21

within their knowledge as a potentially percipient witness and22

does not go to their sort of decision-making in their official

23

duties.

24
25

THE COURT:You know, if

And if there is an allegation, say, thatsomeone at the director level harbored a particular bias andCase 1:23-cv-04738-KPF Document 133-5 Filed 06/28/24 Page 12 of 46
111participated in decisions in a way that potentially provided

2

the target of the decision with a defense, say there was a3

selective enforcement claim that survived, I've said the4selective enforcement defense doesn't survive here, one could

5

say that there's a general Morgan Doctrine applicability; but

6where the subjective mental state of the Director bears

7

directly on a viable defense, that would be a case where you

8would find an exception to the Morgan Doctrine.

9

MR. MOORES:

Right, which I think is why you find, if

10

you read the Ninth Circuit's recent opinion and some of the11other court opinions that impose the bad-faith prong to the12sort of exceptional -- to whether or not the Morgan Doctrine

13

would apply or not, if there is a colorable argument of bad

14

faith, as you're suggesting, with the selective enforcement

15

claim, then that would fall outside of the Morgan Doctrine

16

potentially or at least it would be an exceptional --17

extraordinary circumstance which would fall out of the

18

protection of the Morgan Doctrine.

19

THE COURT:All right.

20

in support of your argument?

21

MR. MOORES:

What else did you want to say

Thank you, your Honor.

So, with respect

22

to the prong of whether or not the information is otherwise

23

available, this is not something that LBRY, who, again, has the24burden to establish is under the Morgan Doctrine, has really25

put forth in their papers.

If we look at some of the topics

Case 1:23-cv-04738-KPF Document 133-5 Filed 06/28/24 Page 13 of 46
121that they believe that Dr. Hinman, sorry, Director Hinman would

2

be testifying about, the perception in the marketplace, so if

3

this is what the marketplace was thinking, then that clearly4would be available from another source other than Director

5

Hinman.

6

identified, which is the Commission's application of the Howey7

test, or the Commission's approach in response to market

8

participants, or the status of the Commission's adoption, these9

are not necessarily topics that are limited to Director Hinman,

10and, again, if subject to discovery, then they could be

11

achieved in other ways than taking Director Hinman's testimony.

12

So, that would just, that prong alone LBRY fails in its effort

13

to take Director Hinman's testimony.

And then the other sort of topics that they've

14

But more importantly I think, perhaps, is just whether

15

or not it is indeed relevant to this case, and as the standard

16

is, it's not just mere relevance.

17

essential to the defense's argument here, LBRY's argument, and18

primarily they're offering or they're proffering it that19

Director Hinman's testimony would be somehow relevant to their

20

fair notice defense for --21

THE COURT:It actually has to be

I think I've got your argument on that,22

and my initial reaction is that argument is persuasive, that23

fair notice defenses really turn on objective evaluations of24

the available information and not the subjective understandings

25of the people who are enforcing or promulgating the doctrine

Case 1:23-cv-04738-KPF Document 133-5 Filed 06/28/24 Page 14 of 46
13

1

that's being challenged.

So, I understand you make that2argument.

3

is persuasive with me, so I don't need to hear you say more,

4

unless you feel you need to.

5

MR. MOORES:At least my preliminary assessment is that argument

No, your Honor.

The one thing I would

6

note sort of interestingly is LBRY is putting a lot of focus on

7

Director Hinman's speech and believes that it somehow supports

8

their position that the Howey test is too vague as applied to9at least LBRY's offer and sales.

10throughout his speech in 2018 upholds the Howey test.

11

simply applying the Howey test, and the references that he12

makes to the Howey test are essentially just quoting the prongs

13of it, where he might say if a promoter does not satisfy prong

14

two, then it's not an investment contract, or if it doesn't

15

satisfy prong three, then it's not an investment contract.

16

in any sort of way it doesn't sort of make logical sense that17

the speech in and of itself would be evidence that the Howey

18

test is too vague, because Director Hinman himself is saying

19

that the Howey test is what controls and, you know, the20

application of it is the facts and circumstances of the21

situation.

22

But Director Hinman
He's

So,

So, the last point I would make, your Honor, is really23

just the notion that, even if it was relevant, what they're

24

ultimately seeking, what LBRY is ultimately seeking is stuff

25

that is protected by the deliberative process privilege or theCase 1:23-cv-04738-KPF Document 133-5 Filed 06/28/24 Page 15 of 46
141

attorney-client privilege.

2

Hinman is an attorney, and in his role he would be providing

3

advice to the Commission or the Commissioners, and in terms of4developing policy, internal discussions about how that Howey

5

test would apply, the deliberative process privilege would also

6

apply.

7

As I mentioned beforehand, Director

So, in terms of how -THE COURT:I think you may be right on that, but if

8that were all we were dealing with my inclination would be to9

say you should have the deposition and you object and instruct10

not to answer, and then the Court can evaluate on a11

question-by-question basis claims of a deliberative process.

12

The basic problem for me is I haven't seen anything in

13

LBRY's requests that gives me any encouragement that he has

14anything to say that would be relevant.

15

point is that the test here, to the extent the doctrine

16

applies, is much more than mere relevance, but I'm just not17

seeing what he has to say that's useful at all in this18

litigation, and so that would be a basis on which to19potentially quash a deposition subpoena.

20

he's got things to say that are protected by the21

attorney-client or deliberative process privilege, my view is,22

well, let's see what he says in a deposition and you instruct23

him not to answer on those questions where there's a potential

24

privilege, and then I evaluate those on a motion to compel.

25

Something like that's the way I would ordinarily do it.

I understand yourIf it was just, well,Case 1:23-cv-04738-KPF Document 133-5 Filed 06/28/24 Page 16 of 46
151

MR. MOORES:

I would agree, your Honor.

I was just2suggesting that under this Morgan Doctrine specifically, and I

3think you were talking a little bit perhaps outside the Morgan

4

Doctrine just on relevance, but within the construct of the5Morgan Doctrine, where LBRY has to establish extraordinary

6

circumstances, ultimately what they're seeking is not available

7

from Director Hinman due to the privileges, and that sort of

8

guts their argument that it is actually relevant or satisfies

9

the extraordinary circumstance.

10

THE COURT:Your point is to the extent they want to11

get from him, Tell us what you guys were talking about inside

12

the agency when you were formulating your policies about what

13

would qualify as an investment contract under Howey, your view14is that's deliberative process and/or attorney-client, and he15

would never get it anyway, so he can't satisfy the16

extraordinary circumstances exception based on that.

17

understand your argument.
MR. MOORES:

18

Right.

Okay.

I

And then, lastly, I know that19

LBRY has suggested that Director Hinman's testimony would be20

relevant to its sort of defense in chief, which is just that21

the offer and sales do not satisfy the Howey test itself, but

22

it doesn't seem that Director Hinman -THE COURT:23

No offense to him, but that's my job here,24

not his.

What he says when he speaks as a private citizen,

25

what he says when he gives speeches, my reaction is I could

Case 1:23-cv-04738-KPF Document 133-5 Filed 06/28/24 Page 17 of 46
161

care less.

I mean, that's not something that's entitled to2deference under any doctrine that I'm aware of, and in the end

3of the day I'll make the decision whether the SEC has a viable4

claim here or not.

5

how he thinks the doctrine works matters at all.

6

mean, how does it -- I don't defer to government employees

7giving speeches on their own dime talking about the way they8

think the law works.

I'm not giving any deference to that.

9

I right about that?

Do you understand my concern?

10

MR. MOORES:

So, I don't think what he has to say about
Does it?

Honor, that the deference is to the precedent and the12controlling case law, not to director -THE COURT:Am

I do, and I think you are right, your

11

13

I

And any regulations or actions that are

14

taken under doctrines like Chevron or similar doctrines in15

which, when the agency speaks in ways that entitle it to16

deference, then, of course, the Court would grant deference,17

but the Court doesn't give deference to agency employees, even18

high-ranking ones, when they try to say to people what they

19

think the law is.

20

wouldn't affect my decision making one way or the other.

21
22

That doesn't get any deference, and so it

MR. MOORES:

So, your Honor, subject to your questions

or rebuttal to what LBRY has to argue, I'll cede the floor.

23

THE COURT:

Okay.

24

Go ahead, Counsel.

25

MR. MILLER:

Let me see what LBRY has to say.

Good afternoon, your Honor.

My name isCase 1:23-cv-04738-KPF Document 133-5 Filed 06/28/24 Page 18 of 46
17

1

Keith Miller.

2

Coie.

I represent LBRY, Inc.

I'm a partner at Perkins

3Your Honor, I thought you made a good observation

4

regarding the rationale for the doctrine, and I'd like to5elaborate a little bit further on it.

First, as I understand,6

the rationale for the rule is twofold.

One is to prevent a7chilling effect, if you will, on senior official government

8

officials so that they do not -- their discussions amongst

9

members of the agency are not chilled because of a threat of

10being deposed.

11

need to ensure that an official, because of his title, he's not

12

engaged in litigation depositions because of his title.

13

The second rationale, as you stated, is theSo, with that rationale I would argue, your Honor, we

14

need to look at what we're trying to get from Mr. Hinman.

15First of all, we're trying to obtain as a private citizen -- as16

he said, These are my personal statements -- what he believed

17

was relevant in making determination under Howey whether a18

digital asset is a security.

19

to depose him about, not what did the other staff members talk20

to you about about digital assets.

21

to ask Mr. Hinman about.

22

he drew conclusions as a personal individual.

23very dispositive on the issue of fair notice.

24
25

It's his speech that we're asking

That's not what we're here

We're here -- he made a speech where

If the Director of -- I'm sorry.

We believe it isIf the Director of

Corporate Finance has a theory about what the industry does

Case 1:23-cv-04738-KPF Document 133-5 Filed 06/28/24 Page 19 of 46
18

1

know and what the industry doesn't know, that's important2

because it provides a standard.

3

will be presenting evidence at trial on this, if the entire

4

industry doesn't know if a digital asset under these types of5

circumstances is an investment contract under Howey, okay, that6

is relevant to evidence at trial to prove that they didn't have7

fair notice.
THE COURT:8

If the entire industry, and we

So, if he thought -- if a person in his

9position gave a deposition in this case and took the position

10

that he subjectively thought that LBRY's offerings were11

registrable securities offerings, that's a fact that I could

12

take into account in deciding whether your client is liable or

13

not?

14

about whether your client is liable based on the law, not based15

on what random private citizens think about it.

16

That seems really weird to me.

MR. MILLER:

We want to make decisions

It goes to fair notice, your Honor, what

17

in our papers we've shown.

We have Mr. Hinman talking about

18

two digital assets, Bitcoin and Ether, and he concludes that19

they are not securities, and he also concludes that at some20

point in time, and his speech is clear on this, and it's also

21

cited by Chairman Clayton in his letter to Congress, that22

securities that are initially securities can morph if the23

efforts of others are no longer there.

24

there's never been any communication by the SEC about what are25

those factors, like when is something a security in theSo, we think, andCase 1:23-cv-04738-KPF Document 133-5 Filed 06/28/24 Page 20 of 46
191

beginning and then morphs into a non-security?

2

raised that as a defense here.

3

it was at some point in time and it is no longer a security

4

because the efforts of others are ministerial, and so, if

5Hinman were to testify, I went through this process in writing

6

my article and in connection with that I met with industry

7

leaders, I met with lots of different attorneys, and that was

8

the impetus of writing this speech, I think that goes to show

9or support our argument of fair notice, that there really10

wasn't fair notice here.

11

THE COURT:And so, we've

In our answer we said, even if

Let's assume that you're right, at least

12

insofar as it bears on your fair notice defense, what Hinman

13

actually publicly says, but that's not what you're seeking to

14

obtain in this deposition, because you already have what he15

publicly says.

16

MR. MILLER:

Right.

17

THE COURT:

You're trying to get at things he hasn't

18

publicly said but that you think are useful in understanding

19

his thought process.

20

your fair notice defense.

21

MR. MILLER:

I don't see how that has any bearing on

Well, we would ask him, What was the22

rationale for your speech?

Why did you put it out?

What were

23

your communications with third parties in connection with your24

speech?

25

apply Howey to Bitcoin and Ether?

What was your application at the time -- how did you
You know, I think those areCase 1:23-cv-04738-KPF Document 133-5 Filed 06/28/24 Page 21 of 46
201

the things that we would explore to try to figure out whether

2

our fair notice defense has further evidence that can be3demonstrated at the trial.

4

THE COURT:

Okay.

Well, look, I think that's helpful5

to me, because it does -- you're being frank with me about the6kinds of things you want, which I appreciate.

7

evaluate your request.

8

that we really want to know what led into his speech, what his

9thinking was, who he was talking to, what input he was getting

10

for it, because we think that bears on our fair notice defense.

11

That's primarily what you want to talk to him about.

12

fair to say?

13

MR. MILLER:

It helps me

But I do understand you to be saying

Is thatThat's fair to say, and that's, frankly,

14

consistent in how the Court in the Ripple case has approached15

this, and that is allow Hinman's deposition to occur and to16

allow limited discovery regarding --17

THE COURT:In that Ripple case I'm remembering, if

18

I've got it wrong, you'll tell me, wasn't there an aiding and19abetting allegation in that case, and didn't the Court

20

specifically have to be concerned with the subjective mental

21

state of the deponent to evaluate a claim?

22of before I precluded it you asserted a selective enforcement

23

defense and a kind of bad-faith argument on the part of24

decision makers, if I allowed that defense this case would look25

more like Ripple, but it isn't really a Ripple case as it

Much in the nature

Case 1:23-cv-04738-KPF Document 133-5 Filed 06/28/24 Page 22 of 46
21

1

currently is postured.

2

Ripple?

3

So, isn't that a way to distinguishI think the government makes that point.
MR. MILLER:

They do, and in our response, your Honor,

4

we demonstrate why the Court's opinion wasn't solely focused on

5

the aiding and abetting.

6

the motion.

7

individuals have to substantiate a knowledge prong for aiding

8

and abetting, but it was also for the benefit of Ripple.

9

wasn't just, Okay, individuals, you can take the deposition,

10

and I think we mention that in our brief at pages 12 and 13.

And so, yes, the Court did mention that the

THE COURT:

11

Ripple and the individuals broughtItSo, you argue that, but what about Judge

12

Bowler's decision in Navellier?

13

that the Morgan Doctrine did apply and protect someone at the14very same level.

15

I should --You just say she got it wrong on this one andMR. MILLER:

16

She reached the conclusion

I think that case, if I remember it

17correctly, your Honor, I believe that the depositions did take18

place, but, again, the deliberative process privilege was19

invoked at the deposition.

20

prohibition, unless I'm mixing that case -THE COURT:21

It wasn't a blanket, absolute

I may have misunderstood that.

Just tell me.

Let me ask

22

the government.

You're the one that cited

23

Navellier.

24

and it's just a selective -- because that wouldn't make sense25

to me.

Is that right, the depositions already took placeThat would be a deliberative process privilege, not aCase 1:23-cv-04738-KPF Document 133-5 Filed 06/28/24 Page 23 of 46
22

1

Morgan Doctrine problem.

2

MR. MOORES:Your Honor, I'll double check on this,3

but it's my understanding that those depositions did not go

4forward.

5of Enforcement.

6

forward.

It was a former Commissioner and it was the Director

7

My understanding is that neither of those went

THE COURT:

Yeah, the Morgan Doctrine is designed to8

prevent the deposition entirely, not to prevent selective -- to9protect certain answers once the deposition is underway.

10

That's really more deliberative-process privilege kind of

11

issues.

12

how the deposition takes place.

That's the way I thought the13

Morgan Doctrine worked.

So, you'll both check on that14

and let me know if you come up with anything, and I'll go back15

over it, but I didn't recollect that the depositions, in fact,

16

occurred.

17

I don't think did occur.

18

Okay.

If you allow the deposition, the ordinary rules govern

Okay.

There were other depositions, but those depositions

So, Counsel, can you help me out on this?

What

19

do you think is the way to distinguish a high-ranking official

20

from a non-high-ranking official for purposes of the doctrine?

21

MR. MILLER:

I think you need to go back to the22

rationale again, which is the need to ensure that an official

23

in his official capacity isn't being burdened.

24

no longer an official.

25

supportive of our argument.

Mr. Hinman isSo, that argument I think is much more

Case 1:23-cv-04738-KPF Document 133-5 Filed 06/28/24 Page 24 of 46
23

1

THE COURT:I do think it's a relevant factor in2

determining if they are a high-ranking official potentially3able to invoke the Morgan Doctrine whether there should be an

4

exception.

5

That's how I process it.

6

I think it's a factor but not determinative.

MR. MILLER:

Do you agree or disagree?

Yeah, I agree.

I do agree.

And we also

7

say in terms of looking at, as you said, there are cases on

8both sides where a mayor is clearly, you know, a top-ranking

9

official and when there's other deputies, things like that,10

depending on the agency.

11

SEC is run by the Chairman and four Commissioners.

12

asking for their depositions.

13

Directors and 25 other offices that report to the office of the14

Chairman.

15of Public Affairs, you have legislation and inter-government

16

affairs, you have the various divisions, Enforcement, things

17

like that.

18

not a high-ranking official because he's not at the apex of the19

decision making.

20

apex, and I've been trying to figure out what is apex, what

21

isn't, and I think it comes down to can they make the ultimate

22

decision.

23

So, we need to look at the SEC.

The

We're notUnderneath are five Division

You've got Chief Accountant's office, you have Head

Our position would be in this context Mr. Hinman is

And so, a lot of these cases talk about the

THE COURT:

Well, if you believe in the unitary

24

executive theory, there's only one person at the apex of the25

Federal Government, and that's the President of the United

Case 1:23-cv-04738-KPF Document 133-5 Filed 06/28/24 Page 25 of 46
24

1

States.

2

to a secretary, it applies to cabinet secretaries, and it would

3

clearly apply to the SEC Commissioners and the Chair of the4

Commission.

5level in an organization like the SEC, and I don't think

6

there's been a well-reasoned decision that I've seen that helps

7

inform how a court should go about undertaking that analysis,8

so what we're left with are a bunch of analogies where the9court applied it this way and the other court applied it that

10

way.

11

So, it clearly doesn't mean that, because it applies

The question is does it ever apply below that

What I'm inclined to do is to say that we should

12

evaluate high ranking not in any kind of absolutist or

13

categorical way; we should really look at what the functions of

14

the office are, and if those functions are such that that15

person is likely to be involved in highly voluminous, complex,

16

discretionary decision making, where the person exercises a17

policy formulation role and isn't simply executing policies

18

established at lower levels, that you probably ought to think

19of that person as high ranking because, given the exposure that

20

that person has to potential litigation, the burdens on the21

office could be extraordinary, as opposed to, say, a line SEC

22

attorney, like the one that's currently arguing in front of me,

23

who's not a high-ranking official, but when you go sufficiently

24

up the policy chain that that person is effectively a manager

25

of a big portfolio where hundreds and thousands of decisions

Case 1:23-cv-04738-KPF Document 133-5 Filed 06/28/24 Page 26 of 46
25

1

are being made by subordinates and reviewed that that person is2

sufficiently high ranking to potentially qualify.

3

And then, in my mind, we should police the4extraordinary circumstances exception reasonably to allow

5

exceptions like the one I proposed, where someone has direct

6

personal knowledge of a matter that isn't part of his

7

management portfolio where he's indirectly supervising a bunch

8of stuff but he, in fact, or she, in fact, witnessed something

9

if it happened in the office that gives rise to potential

10

liability.

11

because that person has unique and very important information

12

as opposed to information that is largely derivative about

13

policymaking or execution of policy.

14

Then you would easily find the exception satisfied,So, that's how I'm inclined to look at it, and15

anything else you want to say on that subject go ahead, and16then make any other points you want to make on the particular

17

issue.

18

MR. MILLER:

Just a final point is, again, I think the19

Court should view this as an individual, yes, he was at an

20

agency, but expressed an opinion, their personal opinion, and21

for that reason I think the exceptions to Morgan, the Morgan

22

Doctrine, apply, and the rationale for the Morgan Doctrine

23

would not apply in this situation.

24
25

THE COURT:
argument on it.

All right.

Thank you.

I appreciate theCase 1:23-cv-04738-KPF Document 133-5 Filed 06/28/24 Page 27 of 46
26

1

So, in preparation for the hearing today I carefully

2

reviewed the Supreme Court's decision in Morgan.

I read the3First Circuit's decision in Bogan against the City of Boston

4

reported at 489 F.3d 417, a 2017 First Circuit decision, which5

is, of course, controlling precedent in my case.

6

I tried to look at how other courts dealt with the7issue of whether someone is a high-ranking official or not,8

and, as I have suggested to you, I don't think there are an

9abundance of well-reasoned decisions, certainly nothing that's

10controlling on me.

11that I think are somewhat helpful, although the reasoning

12

provided is very limited.

13

Let me just identify a couple of examples

I did look at the case of RI, Inc. against Gardner,

14

which is reported at 2011 Westlaw 4974834, an Eastern District

15of New York decision from 2011 that held that the Solicitor

16

General of the United States Department of Labor was a17

sufficiently high-ranking official to qualify under the Morgan

18

Doctrine.

19

I looked at a decision from the District of New

20

Jersey, U.S. against Sensient, S-e-n-s-i-e-n-t Colors, Inc.,

21

reported at 649 F.Supp. 2d 309, a 2009 District of New Jersey

22

decision, where the Court held that an EPA regional

23

administrator was a high-ranking government official.

24

And I looked at a decision from the District Court of25

the District of Columbia, Low against Whitman, reported at 207

Case 1:23-cv-04738-KPF Document 133-5 Filed 06/28/24 Page 28 of 46
27

1

F.R.D. 9, where the Court concluded that the EPA's Deputy Chief

2of Staff did qualify as a sufficiently high-ranking person.

3

Finally, I looked at, again, a District of -- Columbia

4

District Court decision, Sourgoutsis, S-o-u-r-g-o-u-t-s-i-s,5against United States Capitol Police, 323 F.R.D. 100, a 2017

6

District of Columbia District Court decision where the Court

7

held that the Inspector General of the United States Capitol

8

Police was a high-ranking official for the purpose of the

9Morgan Doctrine.

10

As I said, my inclination, in the absence of more

11

specific guidance from the First Circuit or the Supreme Court,

12

is to suggest that in determining whether someone's a

13high-ranking official you shouldn't look at a simple

14

categorical approach of are they the highest ranking official

15

in their agency.

16

functionally, and do they perform functions that involve

17

supervision of a large number of subordinate employees that are18

responsible for carrying out the day-to-day operations of that

19particular governmental agency, whether they are involved in20

overseeing substantial amounts of government activity that21

could potentially expose them to hundreds of thousands of22

lawsuits if they were routinely subject to deposition, and23

judged by that standard -- and I do believe, as I said, that24

the Navellier case that I've previously cited supports this.

25

Rather, I think you should look at it

I do believe that potentially that the former Director

Case 1:23-cv-04738-KPF Document 133-5 Filed 06/28/24 Page 29 of 46
28

1

does qualify as a high official.

2

official is a factor to consider but isn't dispositive,

3

because, again, we don't want people who take these positions

4

when they do leave office to spend the rest of their life5

taking depositions, responding to efforts to establish whatever6

it is that the litigant wants to establish.

7

that this former Director does have a position that potentially8

qualifies him under the Morgan Doctrine for protection against

9

deposition.

10

The fact that he's a former

So, I do think

What's really important to me here, though, is I just11

do not understand how the former Director has anything to

12contribute here.

13

appreciate his frankness.

14

what drove him to make the speech, who he communicated with15

when he made the speech, what his internal thought process was,16

or who he may have been deliberating with while formulating his

17views on this matter come anywhere close to satisfying an

18extraordinary circumstance test.

19

the testimony to convince me that it was widely understood in20

the marketplace that there was a particular view about how the

21

Howey test applies, that could be established from people other22

than the former Director.

23

that might testify about that, one could imagine people engaged

24

in the industry that might be able to testify about that, and I

25

don't believe that that information would be uniquely available

And I respect Mr. Miller's argument, and I
I don't think that questions about

To the extent he wants to use

One could imagine an expert witness

Case 1:23-cv-04738-KPF Document 133-5 Filed 06/28/24 Page 30 of 46
29

1
2

from the former Director.
More fundamentally, I just don't see how that3

information has any potential relevance to the proceeding.

4

way I'm seeing it, the primary defenses here are this just5doesn't qualify under Howey, it's not an investment contract,

6

the SEC can't prove its case, and, in any event, we have a7

viable fair notice defense.

8

objective facts, the Director has no personal knowledge of the9particulars of this case, and in my view the fair notice10

defense really turns on objective criteria, not subjective

11

thought process of the individual involved, and I do agree that12

it's likely that, to the extent one wants to get into that,13

it's hard for me to see how it isn't protected by the

14deliberative process privilege, and so it wouldn't be15

available, in any event.

16

exceptional circumstances test comes anywhere close to being

17

satisfied here.

18

The

Both of those issues turn on

So, I don't believe that theSo, for those reasons and the additional reasons set

19forth in the SEC's supporting memorandum I'm going to grant the20

Motion for Protective Order and bar the deposition of the21

former Director.

22
23
24
25

Does anybody need me to make any additional findings
or rulings with respect to that particular issue?
Is there anything else from the SEC that you feel I
need to take up that I haven't taken up?

Case 1:23-cv-04738-KPF Document 133-5 Filed 06/28/24 Page 31 of 46
30

1

MR. MOORES:

Not as to that motion, your Honor.

2

THE COURT:All right.

Mr. Miller, anything else?

3Your objections are all preserved, of course, for purposes of

4

appeal.

5

haven't taken up on that particular --Is there anything else you need me to take up that I

6

MR. MILLER:

No, your Honor.

7

THE COURT:All right.

So, let's turn to the next

8

matter, which is a proposal by the SEC to delay the scheduling

9of this case.

10

Counsel, one thing that has really resonated with me

11

in this case is that LBRY feels extremely burdened by this12

litigation.

13

done is appropriate and the discovery requests to date have not

14

been overly burdensome, but this is a company that is clearly15

not in great financial circumstances.

16

on their efforts to survive.

17

To the extent they oppose delays, I want to try to keep this18

matter moving.

19

they have -- if I'm understanding your position correctly, your20

position is that LBRY, without making it clear to you

21

initially, has arbitrarily drawn a self-imposed line on what22

discovery they're going to produce and that they're not -- they23

haven't produced anything post filing of the complaint.

24

overstating your position, or is that your position?

25

Now, you make arguments that everything you'veThis has a big bearing

This has been going on for years.

On the other hand, your point is you think that

MR. MOORES:

Am I

Your Honor, there's a lot that's true.

Case 1:23-cv-04738-KPF Document 133-5 Filed 06/28/24 Page 32 of 46
31

1

There's, I'm sure, things that just need to be clarified on the2edges.

3of additional number of depositions, we're not seeking

4

additional interrogatory numbers.

5

here is a little bit more time for LBRY to produce the6

documents that are responsive to the requests and that have7

been sort of outstanding since October and that LBRY just has

8

not yet produced, either sort of inadvertent oversight or9potentially they just hadn't gotten to it at that point, and10

one of the things --11

THE COURT:

But, you know, our position is we're not seeking sort

What we're really seeking

I'll let you finish in a minute, but as12

specifically as you can and as narrowly as you can do it and13

consistent with your responsibilities, what is it that you're

14seeking from LBRY that you believe you've requested but have15

not yet received?

16

MR. MOORES:

Just as sort of a chronology, your Honor,

17is that essentially LBRY was doing a rolling production.

It

18

had made a substantial production towards the end of January.

19

We looked -- and they reported they were mostly done with their

20

production.

21

got in and it was processed, and we noticed that there were a22

lot of gaps in their production.

23

what custodians that they had collected documents from.

24

were as to the types of documents.

25

records like memoranda, Excel spreadsheets, presentations to

We started looking at it, you know, soon after it

Some of them were gaps about
Some

So, for example, businessCase 1:23-cv-04738-KPF Document 133-5 Filed 06/28/24 Page 33 of 46
32

1

investors.

2

produced.

So, all of that type of documentation was not

3

Their filing system is like a Google Drive, and that

4

is where the company stores its documents, and those documents

5

hadn't been produced.

6

THE COURT:

Well, let me stop you.

This is not

7

Facebook; this is a company that has got a very small

8operation.

9and confer and specifically lay out for them.

10think you have that you haven't produced.

11

kind of mass over-productions where people just, like, dump the12

hard drive on someone else.

13

get your act together.

14

about -- you know who's involved in this company that makes

15

representations regarding the LBRY currency.

16

they've been doing and saying.

17

more specific with them, rather than making kind of blanket

18

requests that they then have to just kind of blindly poke

19

around in their files for?

20

It's hard for me to understand why you can't meet

MR. MOORES:

This is what I

We don't need theseAt this point you've had years to

You should be able to be very specific

You know what

Why can't you just be a little

Well, your Honor, we did actually go

21through that meet-and-confer process just like you're

22suggesting.

23

that they hadn't produced that were responsive and were24

relevant and important to their claims or defenses -- our25claims or their defenses -- but they have endeavored after that

We provided a long list of items that we thoughtCase 1:23-cv-04738-KPF Document 133-5 Filed 06/28/24 Page 34 of 46
33

1meet and confer to actually produce a large volume of those2

documents that we noticed that were missing, and they're still3

endeavoring to produce it, like, as I mentioned, sort of the4

Google Drive documents, which, you know, it's a company that

5

does a lot of their work, my understanding is, virtually

6

because, you know, the employees might be scattered at

7

different places, and they save their documents to a Google

8

Drive, at which point they will link their communications, even9with investors, that will say, Go to our Google Drive and look10

at documents in connection with an offer.

11

types of documents that we were seeking and that hadn't been

12

produced and the company is still producing.

13
14
15

THE COURT:

And those are theWhat depositions do you have left that you

need to do?
MR. MOORES:

So, we had previously noticed the16

depositions of Mr. Kauffman and Mr. Grin.

We also have a

1730(b)(6) deposition that has been noticed, and there's

18

potentially a couple of other depositions that we would take,19

depending on the Court's --20

THE COURT:And you want to delay these depositions

21

until you've had what you think is a more complete production

22

from LBRY?

23

those depositions after you've had a reasonable time to process

24

a full document disclosure?

25

MR. MOORES:

You're not planning to take more; you want to do

Right.

So, there are potentially aCase 1:23-cv-04738-KPF Document 133-5 Filed 06/28/24 Page 35 of 46
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1

couple of depositions -- to be candid, your Honor, our schedule2

ends at the end of -- a week from Friday, and if the Court did

3

not extend the schedule, then next week would be full of as

4many depositions as possible.

5that we hadn't noticed that we were contemplating taking, but,

6

you know, there just isn't enough time under the current

7

schedule.

8

the important piece, is that we wanted to be able to receive9

the documents, review them, process them in order to use them10at these depositions, and there just isn't enough time.

11

was a production made last night; there was a production that12

was made earlier this morning.

13

continue to make productions over the next couple of weeks in

14order to fulfill those items.

15

So, there are other depositions

But to your point, your Honor, that is fundamentally

There

We anticipate that LBRY will

There is a discovery dispute.

And specifically as to that cutoff that you had

16

mentioned, your Honor, where LBRY has sort of arbitrarily cut

17

the date of the complaint off as what is discoverable, we

18

disagree with that.

19

documents that postdate the date of the complaint, but they're

20

withholding a number of others, and we have sent that to the21

Magistrate for her attention and mediation.

22
23
24
25

THE COURT:

Now, the company has produced someSo, have they presented a log of documentsthat are responsive but they believe should not be produced?
MR. MOORES:

Negative, your Honor.

They just havesort of said the date of the complaint is a date that we would

Case 1:23-cv-04738-KPF Document 133-5 Filed 06/28/24 Page 36 of 46
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1

not be receiving any electronic communications or business2

records.

3

THE COURT:

I'm the last one to want to encourage

4

discovery motion practice.

5

I usually ask the Magistrate Judge to oversee it for me, and,6

frankly, it's not in either of your side's interest to involve7

me in those matters, because it becomes unpleasant quickly.

8

So, I want to try to avoid having to become engaged with those9kind of specific back and forth.

10

thoughts.

I abhor discovery motion practice.

I will offer some general11

You have an argument where you are going to be

12

requesting injunctive relief, and you have allegations of what13

you say are continuing violations.

14

is not an arbitrary cutoff date.

15

sympathetic to LBRY's expressed concern.

16

they say the million documents -- you make a good point that,17

as is usually the case when you make electronic production

18

nowadays, what in the paper world 30 years ago would have been

19

three file boxes is now a million documents.

20

too much of the number of documents.

21

time to do pre-filing investigation here; you've had a22

substantial amount of time to engage with this litigation.

23

Ordinarily, when we get to the end of a discovery period you

24

should be, and you're trying to be, courteous and cooperative,

25

and let's meet and confer, all of which I encourage, but as the

The date of the complaint

On the other hand, I am
I keep in mind when

So, I don't makeBut you've had a long

Case 1:23-cv-04738-KPF Document 133-5 Filed 06/28/24 Page 37 of 46
36

1

discovery deadline approaches that's when you have to sort of2

get tough and you have to say, Look, I need A, B and C, and I

3need them by this date, or we're going to have to extend the4

discovery deadline by X amount of time.

5

So, I'm sympathetic to the extent that LBRY has not

6

produced post-filing documents that are responsive to your7

request.

8

requested either should seek a protective order from the Court

9on the grounds that it's overly burdensome, or they should

10

withhold the documents and produce a privilege log explaining

11

the legal reasons why, although responsive, they don't have to12

be produced.

13

motion to compel so that we then can order a person to compel

14

and then moderately extend the deadline.

15of that here.

16

what are you requesting, a 60-day extension?

17
18
19

In my view, a company that isn't producing what's

Absent that, I expect the moving party to file a

We haven't done any

My inclination is to say, all right, let's --MR. MOORES:

Yes, your Honor, which actually doesn't

impact the trial date as proposed.
THE COURT:My proposal is that we try to cut this20

thing down, we extend everything by 30 days, we keep the trial

21

date as we schedule it.

22

take time away from me to resolve the summary judgments

23

motions, but I'm willing to try to assign this matter as an

24

expedited matter in my chambers so that, when the motions

25

become ripe, we hold argument and I try to resolve those on an

That will put pressure on me.

It willCase 1:23-cv-04738-KPF Document 133-5 Filed 06/28/24 Page 38 of 46
37

1
2

expedited basis.
So, that gives you a little more time, but I think

3

what you would need to do is you need to be very specific with

4

LBRY and say, These are the things out there that I really need5

before I can do these remaining depositions, and then, if they

6

don't get them, I think what you probably need to do is take7

the depositions with the documents you've got, file a motion to

8compel, and at the risk of, if LBRY doesn't produce and I later

9

determine that they have failed to produce, I'll reopen

10

discovery, allow you to do a limited re-deposition about the11

new documents at LBRY's expense.

12

I want to keep the case moving.

I recognize we're13

close to the deadline, and so a month seems to be reasonable.

14

You'll have to work hard to get everything in.

15

point I think the two things you need to do is take a look back16

at your demands, see what reasonable focus you can bring to17them, renew your demands, schedule the remaining depositions.

18

If you don't get the documents you want, file a motion to19compel and remind me that I told you that you should go ahead

20

and take the depositions with what you've got, and if I allow

21

additional relevant discovery I'll consider a request to reopen

22

limited depositions at LBRY's expense if they're improperly

23

withholding information.

24

practically resolve it.

25

But at thisOkay?

So, that's how I would say to

Let me hear from LBRY.

As I said, I'm sympathetic toCase 1:23-cv-04738-KPF Document 133-5 Filed 06/28/24 Page 39 of 46
38

1

your desire to move ahead, but I also -- I don't believe, to2

the extent you're using some kind of arbitrary filing date3

cutoff, that that's justifiable, and I do think you should be4

able at this point -- that the SEC should be able to be quite

5

specific with you as to what they need, and then you need to6

assign it as a priority.

7

taken, complete the record here, get our motion practice8

underway and get this matter resolved.

9

am in my thinking.

But we need to get those depositions

That's sort of where I

10But, Mr. Miller, what did you want to say?

11

MR. MILLER:

I just want to make sure the record is

12

clear on certain things and it's really on what's occurring in

13

discovery.

14

document productions we claim we are going to produce between

15

this time and this time.

16

counsel, there's got to be a point in time when you have to17stop collecting.

18

did you -- did you -- were you responding on a slot chain (ph)?

19

That's not fair and reasonable.

20

was raised -- and when was this raised?

21

interesting, you Honor, to find out when it was raised.

22

raised in the beginning, right after we submitted our expert

23

report, which was February 4th.

24

expert report, and since then we've been deluged with, Oh, we25

don't have this, we don't have that, we don't have this, andIn our objections to their initial request for

You need to have, as I explained to

I can't go to the company and say, Last week

We did say to them after thisAnd I think it's
It wasThe SEC did not submit anCase 1:23-cv-04738-KPF Document 133-5 Filed 06/28/24 Page 40 of 46
39

1

we've been trying to work with them.

2

The Google Drive.

We've produced almost everything

3

except for 226 loose documents from Google Drive that are being

4

reviewed right this second, and that's how we've been making

5

production since last week.

6

past this point, we're willing to consider it.

7tell us, You take the subpoena and you interpret it and you

8

produce everything that's responsive as of last week.

9

not fair and reasonable.

10

THE COURT:

If you say this is what we need
But you can't

I'm sympathetic to that concern.

That'sWe're

11getting towards the end of discovery, so at this point we've

12

got to have the SEC reasonably say, Give us what you've got to13this point, and then let's move on, and then, of course, if

14

there is some unusual development in the last few weeks, if

15

someone needs to move to reopen discovery, you can try and do

16

that, but I agree we've got to try to bring this matter to17closure.

18

virtually everything it needs to bring its case when it takes

19

those few remaining depositions, and we've just got to get on

20

with the matter.

21

and just would, you know, tell you I will do what I can to22

expedite my part of it once the motions are ripe and I can23

consider it.

24
25

I would have to imagine that the SEC will have

So, I hear you on that, and I am sympathetic

I did take a long time, in my book, to resolve theselective enforcement claim, and I will tell you that, because

Case 1:23-cv-04738-KPF Document 133-5 Filed 06/28/24 Page 41 of 46
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1

of the arguments that the parties were taking and my own view

2-- so the ground on which I decided that matter was a narrow3

ground, but I have a broader view about how selective

4

enforcement works.

5

dealing with the narrower ground.

6

completely right on its position of a kind of categorical, We

7

can never be charged with selective enforcement approach, that8

it was arguing.

9

regarding how you deal with selective enforcement defenses, I

10have my own view, which I spent a lot of time thinking about

11

and ultimately decided, you know, that wasn't an argument that12

the parties presented, and so out of fairness to the parties I

13went back and looked at the narrower argument on which I

14believed from the beginning that the SEC was correct and15

followed that.

16

think you both will acknowledge, is a pretty challenging area17

of law where the Supreme Court has not been as clear as we

18

would all like it to be about how you deal with the issues of19

selective enforcement post Engquist.

20

I would have come out the same way without
I don't believe the SEC is

I also don't believe that LBRY's position --So, that took me a while, because that, as I

So, I apologize for that.

That took me longer than I

21

expected, but I will assign a priority to this matter when it

22

comes up on the remaining issues, and I should be able to put

23

out an order within, like, 60 days of the time the matter is

24argued to me, if not sooner.

25

you to work on your end.

So, I'll work on my end.

I wantCase 1:23-cv-04738-KPF Document 133-5 Filed 06/28/24 Page 42 of 46
41

1
2
3

I will grant a 30-day extension of the deadlines you
propose, not 60.
I will instruct the parties to meet and confer again.

4

I'll tell the SEC that I agree with LBRY's position that we

5

can't expect it to make open-ended, every day they're doing

6

something different they need to go back and they're, Have you

7

got any more now that we need to produce?

8

impose a cutoff date, and so you'll explain what that is, agree

9

to it, be specific in your requests, they'll comply, you'll go

10ahead and schedule all the remaining depositions you propose to

11

take within the next 30-or-so days that we have left in the12

discovery period, and then we'll move on.

13

It's reasonable to

Okay?

So, the parties' positions on that are preserved, to

14

the extent they disagree with that.

It's a practical approach15

to try to address I think legitimate concerns on both sides.

16

Did you want to say something else, Mr. Miller?

17

MR. MILLER:

Yeah, I just wanted, for point of

18

clarification, the extension of 30 days is simply for the19

completion of discovery; it doesn't include expert disclosures20

and reports.

21

Is that correct?

THE COURT:All right.

I'm glad you raised that.

You

22

alluded to this, and we need to explore it.

I think maybe I'm

23

reading too much into your remarks, but you've left me with the24

impression that what you think is going on here is that the SEC

25

was caught flatfooted by your expert disclosure, and what it'sCase 1:23-cv-04738-KPF Document 133-5 Filed 06/28/24 Page 43 of 46
42

1

really trying to do here is bargain for more time to find a2

last-minute expert and make a report?

3

into your remarks?

Am I reading too much

4

MR. MILLER:

I think that's correct, your Honor.

5

THE COURT:All right.

So, are you trying to get an

6extension of the expert disclosure deadline, and, if so, why?

7

I'm talking to the SEC now.

8

MR. MOORES:Your Honor, that's not a part of our

10

THE COURT:

Okay.

11

MR. MOORES:

But I would reserve, you know, if we were9

proposal.

12

to come back and propose to the Court a rebuttal expert report

13

deadline, but at this time we are not seeking an extension of14

the expert report deadline.

15

THE COURT:

Okay.

So, that's covered, and you reserve16

your right to try to get an extension, if you need one, on the17

rebuttal disclosure deadline.

18

So, that should give you some comfort, Mr. Miller.

19

Okay.

So, that takes care of that issue.

The other

20

issue really isn't ripe yet.

I can't really, out of fairness

21

to LBRY, the government filed a motion for protective order

22with respect to the 30(b)(6) deposition.

23

LBRY's response to it.

24

information that the parties can glean from this hearing that25

should give them some ability to predict how I'm likely to rule

I do need to hearOn the other hand, I do think there isCase 1:23-cv-04738-KPF Document 133-5 Filed 06/28/24 Page 44 of 46
43

1

on some of these matters.

So, do what you need to do, but we2should probably not hold the 30(b)(6) deposition until LBRY

3

responds and I have a chance to rule on LBRY's response.

4

I'm completely open-minded on this with respect to specific5

issues, but, as I said, I am inclined to think of the fair6

notice defense, and this isn't an investment contract defense,7

as largely issues that are resolved based on what's in the8

public record and not on what's in the internal deliberative

9

processes of the SEC.

10

seeking all of the things it's listed in that enumerated list

11

with the government's filing there are going to be some12

problems with that based on what I've said to you up to now.

13

But I'm open to hearing your views, and perhaps the parties

14

between now and then can reach some kind of reasonable

15

compromise on a narrower subset of proposals.

16

can't, file your objection.

17

objection, and I'll rule on it on the papers and try to do it

18

expeditiously so we can keep this thing moving.

And

So, I think to the extent LBRY is

But if you

I'll rule on it when I get the19

All right.

Is there anything more from the SEC?

20

MR. MOORES:

No, thank you, your Honor.

21

THE COURT:Anything else from LBRY, Mr. Miller?

22

MR. MILLER:

Nothing further.

23

THE COURT:All right.

Thank you, your Honor.

Thank you.

That concludes the24hearing.

I appreciate the good quality of the argument.

25

parties in their dealings with me have been nothing but

TheCase 1:23-cv-04738-KPF Document 133-5 Filed 06/28/24 Page 45 of 46
44

1

cooperative and responsive, and I hope you'll continue to work2

that way with me and with each other so that we can focus on3

the legitimate legal issues that are being raised here.

4

appreciate your efforts in that regard.

5

All right.

Thank you.

6

MR. MOORES:

Thank you, your Honor.

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

So, I

That concludes the hearing.

(WHEREUPON, the proceedings adjourned at 3:10 p.m.)Case 1:23-cv-04738-KPF Document 133-5 Filed 06/28/24 Page 46 of 46
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C E R T I F I C A T E

2
3I, Brenda K. Hancock, RMR, CRR and Official Court

4
5

Reporter of the United States District Court, do hereby certify

6

that the foregoing transcript constitutes, to the best of my7skill and ability, a true and accurate transcription of the8within proceedings.

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Date:

2/25/22/s/ Brenda K. Hancock
Brenda K. Hancock, RMR, CRR
Official Court Reporter