Securities and Exchange Commission v. Thurlow

Background

The Securities and Exchange Commission filed two motions to compel discovery. One sought an order requiring Simon Piers Thurlow, Richard Oravec, and Bradley Fidler to destroy four documents that the SEC had accidentally produced. The other concerned a request for Roger Fidler to provide electronic versions and metadata for documents and communications he had previously produced.

Privileged documents

The court privately reviewed the four documents and determined that they were protected by the statutory privilege for Suspicious Activity Reports, which are reports of potentially suspicious financial activity. The court explained that the privilege covers the reports themselves and documents that would reveal that a report exists. It also concluded that the SEC could assert the privilege even though it did so after the documents had been produced, and that the documents’ possible relevance to the defendants’ defense did not overcome the privilege.

The court therefore ordered the defendants to immediately destroy all digital and paper copies of the privileged documents, retrieve any copies sent to third parties, and destroy the SEC’s entire original production. In the conclusion, the court stated that the SEC’s motion to compel defendants to destroy privileged documents was granted.

Native-format documents

After Roger Fidler produced documents, the SEC requested metadata and native versions—that is, the original electronic versions—of all documents and communications previously produced. Fidler’s counsel responded that many documents had been received in hardcopy and that Fidler mainly worked with handwritten or hardcopy documents.

The court stated that, to the extent Fidler had previously produced emails received electronically or documents stored electronically in his files, he had to immediately produce those communications, attachments, and documents in native format. The court rejected lack of technical familiarity as a reason to withhold the information and directed counsel to facilitate the production. Counsel must provide a declaration by August 8, 2025, confirming that counsel directly facilitated production of the electronic versions and identifying specifically any previously produced documents unavailable in native format.

For new electronically stored documents that had not previously been produced, the court directed counsel to work with Fidler to produce responsive documents. If the volume was too large to search reasonably without assistive technology, the parties were directed to work together on search terms. The court stated that the SEC’s motion to compel production of responsive documents in native format was granted in part.

Disposition

The court terminated the motions at ECF Nos. 169 and 171. Thurlow, Oravec, and B. Fidler were directed to file a letter confirming compliance. The SEC and R. Fidler were directed to file a joint letter about the status of discovery by August 8, 2025.