Benthos Master Fund, Ltd. v. Etra

Background

The court had previously held Respondent Aaron Etra in civil contempt and ordered his incarceration until he produced documents required by earlier orders and paid Benthos Master Fund, Ltd. $145,718.49. The court later increased the payment amount after discovering previously undisclosed bank accounts. The contempt order also authorized a forensic examination of Etra’s electronic devices.

Etra later asserted a Fifth Amendment privilege against producing funds, third-party records, and information from his computer and cellphones. The court previously granted in part and denied in part his motion to exclude documents and information from the contempt order based on that privilege. Etra produced some monthly bank and credit-card records, but the opinion states that the productions did not include records from European bank accounts covered by the contempt order or a required list of all financial accounts held during the specified period.

Privilege and Device Disputes

The forensic protocol allowed Etra to assert privilege over materials on his electronic devices before production to Benthos. Etra asserted that nearly all documents on his computer were protected by attorney-client privilege, including communications with banks, businesses, restaurants, and universities. The court ordered him to provide information about claimed attorney-client relationships involving nine specified email addresses.

Etra initially claimed an attorney-client relationship with people associated with all but one of those addresses. After appointed counsel’s representation was expanded to cover all matters, including compliance with the court’s orders and the forensic protocol, Etra stated that the communications associated with six specified addresses did not appear to contain privileged information and that he was not asserting privilege over them in this action. He nevertheless requested a clawback obligation and an order under Federal Rule of Evidence 502(d) protecting any privilege claims in other proceedings.

Etra also sought to limit Benthos’s review of certain communications with Tracy Evans concerning draft filings, asserting that the communications were protected by a shared legal interest. After reviewing examples in private, the court stated that, if Etra and Evans shared a common legal interest, some portions might be protected as attorney work product while other portions would not be.

Ruling and Orders

The court did not resolve Etra’s renewed motion for release from custody or definitively decide the remaining Fifth Amendment and privilege disputes in this order. Instead, Judge Valerie Caproni ordered the parties to appear for a December 19, 2023 status conference. The court identified six subjects for discussion: whether a clawback or Rule 502(d) order was appropriate for the communications Etra acknowledged were not privileged; whether Etra and Evans shared a common legal interest; whether Etra should prepare a privilege log; whether the court could draw an adverse inference from Etra’s Fifth Amendment assertions concerning his ability to pay the contempt-related financial obligation; whether the privilege could cover entire document categories rather than only specific incriminating materials; and the apparent conflict between Etra’s broad privilege assertion and his counsel’s position concerning access to the cellphone.

The court ordered Vestige Digital Investigations to return Etra’s laptop to his counsel. Counsel could not return the laptop to Etra or give him unsupervised access unless the court later ordered otherwise, and Benthos was to have a reasonable opportunity to respond before Etra regained possession or unsupervised access. The court allowed counsel to request payment from Criminal Justice Act funds for shipping if Etra lacked the money, subject to later reimbursement under the conditions stated in the order. The court also ruled that a Vestige representative did not need to attend the conference, reminded counsel to act professionally, and directed the Clerk of Court to terminate the open motion at Docket 431.