Securities and Exchange Commission v. Genovese

Background

Defendant Abraham “Avi” Mirman filed two motions asking the Securities and Exchange Commission (SEC) to produce discovery. The first motion concerned an audio recording made by a confidential government informant during a meeting with Robert Genovese, Anastasios “Tommy” Belesis, and Mirman, as well as any transcripts, notes, or summaries of the recording. The second motion concerned notes and summaries of factual portions of interviews that the SEC conducted with six SEC trial witnesses who had not previously been deposed.

Recording and Related Materials

The court granted the first motion. It found that Mirman had offered evidence that materials held by the U.S. Attorney’s Office for the District of New Jersey relating to that office’s joint investigation of Mirman were within the SEC’s possession, custody, or control. The court also noted that the SEC had previously received the recording to take notes and possibly transcribe it.

The court found that Mirman had a substantial need for the recording because it reportedly contained information favorable to his defense. It rejected the SEC’s argument that the recording was too many levels removed from direct evidence to be discoverable, explaining that discoverable information need not itself be admissible at trial. The court excused Mirman’s delay in requesting the material because producing one recording or a small number of documents would impose little burden, and because the SEC’s later exhibit list may have clarified the recording’s relevance and availability. The court also found that the SEC’s privilege-log entry was too vague to establish the required elements of a privilege or allow Mirman to assess whether the material was potentially protected.

The SEC was ordered to obtain and produce the recording as soon as possible and no later than September 16, 2022. If the U.S. Attorney’s Office for the District of New Jersey refused to provide the recording, the SEC had to file a letter by that date attaching an affidavit describing its efforts to obtain it. In that event, the SEC had to produce transcripts, notes, or summaries of the recording by September 21, 2022. The SEC could redact attorneys’ mental impressions, conclusions, opinions, or legal theories under the rule protecting attorney work product, but it had to submit an unredacted version to the court privately for review.

Interview Notes and Summaries

The court denied the second motion. It found that Mirman knew about the potential witnesses and their SEC interviews well before fact discovery ended, giving him enough time to request the notes or seek depositions. The court rejected his argument that he lacked a substantial need for the prior statements until the SEC disclosed that it intended to call the witnesses at trial. The court reasoned that accepting that argument would allow parties to postpone important depositions until shortly before trial.

The court also held that a desire to use interview notes for impeachment—challenging a witness’s credibility—does not by itself establish a substantial need for the notes. Mirman’s belief that the notes contained impeachment material was based only on suspicion. The court found that the SEC’s privilege-log descriptions sufficiently established work-product protection for notes from investigative interviews and proffer sessions. It rejected Mirman’s arguments that the SEC had waived that protection through deficiencies in the privilege log or by disclosing certain Federal Bureau of Investigation interview forms, noting that the protections applicable to those forms and to SEC summaries were different.

Disposition

Judge Lorna G. Schofield granted Mirman’s motion at Docket No. 265 and denied his motion at Docket No. 266. The Clerk of Court was directed to close both motions.