IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Transcription

1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ROBERT ALLEN STANFORD, AND THE STANFORD ESTATE, Plaintiff-Claimant v. Case No. 1:17-cv JAY CLAYTON, CHAIRMAN, U.S. SECURITIES AND EXCHANGE COMMISSION, Defendant-Tortfeasor PLAINTIFFS FIRST SET OF REQUESTS FOR PRODUCTION

2 Propounding Part: Robert Allen Stanford, and the Stanford Estate Responding Party: Jay Clayton, Chairman, U.S. Securities and Exchange Commission Set: (One) Pursuant to the provisions of the Federal Rules of Civil Procedure and the Local Rules of the District of Columbia, Plaintiff Robert Allen Stanford (Mr. Stanford) proceeding pro se, hereby submits this "First Set Of Requests For Production". Preliminary Statement Mr. Stanford filed this pro se Federal Tort Claim on November 17, 2017 with a Request for Appointment of Counsel pursuant to 28 U.S.C The Defendant/Tortfeasor filed a Motion 2

3 To Dismiss on March 19, 2018 and, as the Court has yet to rule on the request for counsel from the pro bono panel, Mr. Stanford has now filed a pro se response to the Motion To Dismiss, and a request to proceed with limited discovery under Rule 26. Mr. Stanford's claim stems from the SEC's (February 16, 2009) enforcement action against him and his global group of financial services companies, an unlawful 'extraterritorial' action which, not authorized by the federal securities statutes, was pursued solely for political gain, and not supported by any violations of United States law or a single customer complaint. The documentation sought in this 'First Set Of Requests For Production' falls within the scope of permissible discovery as defined in Rule 26(b)(1) of the Federal Rules of Civil Procedure. It is specific to the claims in the tort, is not overly broad, and centers on the 'deliberative process' that proceeded the decision to pursue Mr. Stanford and his companies. Specifically, it will reveal a substantial disagreement among senior management at the Fort Worth District Office as to whether the agency had, and could assert, jurisdictional regulatory authority over the certificates of deposit sold by the foreign-domiciled, foreign-incorporated and foreign-regulated Stanford International Bank, Ltd. in Antigua. More specifically, whether the certificates of deposit were "securities" as defined in 15 U.S.C. 78c(a)(10). And, whether the purchase or sale of these debt instruments occurred within the territories of the United States, thereby satisfying the "in connection with the domestic sale or purchase of a security" criteria essential to establish and prosecute any violation of Securities Exchange Act 10(b) and its implementing Rule 10b-5. 3

4 Requests Number 1 - Any and all documentation, in non-redacted form, generated from and/or relative to, the March 9, 2010 interview with former Stanford employee Charles Rawl. Number 2 - Any and all documentation, in non-redacted form, generated from and/or relative to, the March 9, 2010 interview with former Stanford employee Mark Tidwell. 4

5 Number 3 - The March 31, 2010 'Report of Investigation', in non-redacted form, issued from the SEC's Office of The Inspector General, OIG-526; Investigation Of The SEC's Response To Concerns Regarding Robert Allen Stanford's Alleged Ponzi Scheme. Number 4 - The following Memoranda, in non-redacted form. The so-called: - Degenhardt Memorandum (OIG-526) - June Draft Action Memorandum (OIG-526) - Cohen Memorandum (OIG-526) - TSSB Memorandum (OIG0-526) 5

6 The 'Cohen Memorandum' explains why the head of the Fort Worth District Office overruled his staff's desire to conduct an in-depth investigation of Stanford Financial Group and its entities. The 'June Draft Action Memorandum' contains material statements revealing the political nature of the "emergency action" containing "special issues" submitted by the Fort Worth Office to the Washington D.C. Office. Accordingly, the need for full disclosure of the content of these Memoranda, in particular, weighs heavily against production after redaction, based on the "deliberative process privilege". Moreover, "When information produced by a party in discovery becomes critical to the Court's analysis, as it is here, the 'purpose' factor does not support redaction". In Re: McCormick Company, Inc U.S. Dist LEXIS (D.D.C 2017) (quoting) Doe v. Exxon Mobil Corporation, 570 F.Supp 2d 49,52 (D.D.C. 2008) "Redacting statements that are critical to a Court's analysis would substantially impede the public's right to access to judicial opinions". Guttenberg v. Emery, 26 F.Supp. 3d 88,92-93 (D.D.C. 2014) The Defendant/Tortfeasor Should Not Be Able To Assert, And Be Shielded By, The Deliberative Process Privilege 6

7 The Deliberative Process Privilege covers "...advisory opinions, recommendations, and deliberations comprising the process by which the governmental decisions are formulated." Davidson v. U.S. Dept. of State, 2017 U.S. Dist. LEXIS (D.D.C. 2017) The purpose of this privilege is to "...prevent injury to the quality of an agency's decisions by allowing government officials the freedom to debate alternative approaches in private." United States v. Trabesi, 2015 U.S. Dist. LEXIS (D.D.C. 2015) However, the deliberative process is not absolute; rather, it is "...relative to the need demonstrated for the information." Northrop Corp. v. McDonnell Douglas Corp., 751 F.2d 395,404 (D.C. Cir. 1984) "The deliberative process privilege is a qualified privilege and can be overcome by sufficient showing of need. The need determination is to be made flexibly on a case by case ad hoc basis." Some examples of the SEC's deliberative (decision-making) process, which gave rise to the February 16, 2009 enforcement action against Mr. Stanford and his companies, and thus establish a need for the production of the documents requested in a non-redacted form, are: "Within days of the Madoff arrest, the SEC contacted us in a panic, wanting to meet immediately after many months of silence. The SEC was so anxious at that point, they asked us to meet them over the Christmas weekend. We met with the SEC the first week of January At this point the SEC expressed its concerns about lacking the jurisdiction over the Antiguan-based bank. We helped them design the legal strategy to implicate the domestic broker-dealer in the offshore fraud." 7

8 - Statement made by former Stanford Financial Group employee Charles Rawl to the House Financial Services Subcommittee on Oversight and Investigations on May 13, 2011 "The discussions regarding Stanford primarily concerned whether the SIB CDs were securities..." (OIG-526, at 104) "From the moment she became involved in discussions regarding the CD aspect of the 2005 Stanford cycle exam [Enf. Staff Atty.1] reportedly expressed the view that the Stanford CDs were NOT "securities" regulated under the federal securities laws, and therefore were outside of FINRA's jurisdiction." (OIG-526, at 123) "Prescott sought the information because it was relevant to the jurisdictional issue of whether the Stanford CDs were securities." (OIG-526, at 111) "Felsman recalled that Enforcement was concerned about a 'major jurisdictional issue'...[and]...they didn't have any clear evidence of a fraud." (OIG-526, at 74) "This would seem to make it difficult to work a case for selling unregistered securities. If we can't go on that basis, then we would have to prove they are operating a Ponzi scheme, which 8

9 would be very difficult, if not impossible, considering that, as far as I am aware, there have never been any complaints by investors." (OIG-526, at 98) "Unlike a lot of Ponzi schemes that have collapsed when you've got investors calling you and...they can't get their money out or there's clear misrepresentation...here...we just didn't have that. [] You don't have anybody complaining about anything going wrong." (OIG-526, at 120) Based on the foregoing, the requested documentation should be provided, in non-redacted form. Robert Allen Stanford, pro se Reg. # FCC Coleman USP II P.O. Box 1034 Coleman, Florida