Case: 1:14-cr-00551 Document #: 144 Filed: 06/06/16 Page 1 of 3 PageID #:3437
`Case: 1:14—cr—OO551 Document #: 144 Filed: 06/06/16 Page 1 of 3 PagelD #:3437
`Morgan Lewis
`
`Kenneth M. Kliebard
`Partner
`+1.312.324.1774
`kkliebard@morganlewis.com
`
`June 6, 2016
`
`VIA E-MAIL AND ECF
`
`Honorable Harry D. Leinenweber
`United States District for the
`
`Northern District of Illinois
`
`219 South Dearborn Street
`
`Courtroom 1941
`
`Chicago, Illinois 60604
`
`Re:
`
`United States ofAmer/ca v. Coscia, No. 1:14—cr—OO551
`
`Dear Judge Leinenweber:
`
`I represent non-party subpoena recipient Intercontinental Exchange, Inc.
`(“ICE”).
`ICE is compelled to respond to this morning's letter from counsel for
`Defendant Michael Coscia, and counsel's accompanying email to Ms. Wanda
`Parker, requesting that the Court take the unusual step of holding in abeyance
`ICE’s properly noticed motion to quash the subpoena issued out of this Court by
`Mr. Coscia. As explained below, if Mr. Coscia believes a court in the Southern
`District of New York (which has no familiarity with Mr. Coscia’s case) should
`adjudicate objections to a subpoena purportedly served in connection with Mr.
`Coscia’s upcoming sentencing before this Court, ICE believes such arguments
`should properly be presented to Your Honor in response to ICE’s pending motion.
`Further, holding ICE’s motion in abeyance will deprive this Court of the
`opportunity to manage its docket by de facto allowing the SDNY to decide the
`proper venue for this dispute and, if Mr. Coscia has his way, the merits of the
`dispute.
`
`As we described in our motion papers filed on June 3, 2016, Mr. Coscia
`served a subpoena on ICE requesting highly confidential and commercially
`valuable audit trail data for a commodities exchanges owned by ICE. (See ICE’s
`Mem. of Law, Dkt. No. 139, at 2.) Remarkably, the subpoena, which was issued
`
`Morgan, Lewis & Bockius LLP
`77 West Wacker Drive
`Chicago, IL 60601-5094
`United States
`
`0 +1.312.324.1000
`0 +1.312.324.100I
`
`

`
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`Honorable Harry D. Leinenweber
`June 6, 2016
`Page 2
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`out of this Court and called for compliance in Your Honors courtroom, gave ICE
`only three business days to comply. (See Subpoena, Dkt. No. 139-6.) In an
`attempt to resolve ICE’s concerns with the subpoena, I engaged in a series of
`discussions with Mr. Coscia’s counsel as part of a meet-and-confer process. These
`discussions continued for almost two weeks after the subpoena’s purported
`compliance date.
`(See Kliebard Decl., Dkt. 139-3 1] 3.)
`(Accordingly, Mr. Coscia’s
`statement in his letter that ICE did not timely move to quash prior to the
`compliance date is nonsense. Rule 17 requires that such a motion be made
`“promptly,” and on similar facts courts in this District have rejected similar
`timeliness challenges. See, e.g., Woodard v. Victory Records Inc, 2014 WL
`2118799, at *4 (N.D. Ill. May 21, 2014) (finding motion to quash timely where
`parties’ course of conduct demonstrated continuing intent to resolve issues
`involving subpoena).)
`
`Soon after the parties reached an impasse, Mr. Coscia made the curious
`decision to file a motion to compel in the SDNY, even though the SDNY has no
`meaningful connection to the criminal proceedings against Mr. Coscia or the
`subpoena. (See ICE’s Mem. of Law, Dkt. No. 139, at 4-5.) ICE timely responded
`to Mr. Coscia’s motion in the SDNY on May 31, 2016, requesting that the SDNY
`transfer the matter to this Court and, in the event the SDNY were to deny ICE’s
`transfer request, that the SDNY deny Mr. Coscia’s motion to compel. Notably,
`ICE’s request to transfer the matter to this Court is based on Fed. R. Civ. P. Rule
`45(f), which allows for transfer if the subpoenaed party consents to transfer or in
`exceptional circumstances. The parties agree that Rule 45's provisions apply, and
`indeed, Mr. Coscia’s SDNY motion to compel was brought pursuant to Rule
`45(c)(2)(A). Because ICE consents to transfer to this Court (along with the
`exceptional circumstances here), the dispute should be heard by this Court.
`
`However, because the SDNY set a hearing on Mr. Coscia’s motion to
`compel for June 14, 2016, ICE wanted to bring this matter to Your Honor’s
`attention so that Your Honor could decide in advance of that hearing whether this
`Court or the SDNY should adjudicate the issue. For that reason, ICE filed a
`motion to quash on June 3, 2016 (Dkt. Nos. 138-39), making the following points:
`(i) Mr. Coscia has not met his burden in establishing the relevance of the
`requested audit trail data (see Dkt. No. 139, at 7-9); (ii) the requested information
`is highly proprietary, confidential, and non—public (id. at 9-13); and (iii) the burden
`of producing the requested data, which far exceeds any request made even by
`ICE’s regulators, is significant in comparison to any marginal relevance of the
`requested data (id. at 13-15).
`
`

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`Honorable Harry D. Leinenweber
`June 6, 2016
`Page 3
`
`In sum, ICE has raised serious concerns with the scope of the subpoena
`and has established why it would be appropriate to adjudicate those issues before
`Your Honor, as opposed to a judge in the SDNY who, with all due respect, has no
`familiarity with the criminal proceeding involving Mr. Coscia. Accordingly, we
`respectfully request that the presentment hearing on ICE’s motion to quash
`proceed as scheduled tomorrow, and that Mr. Coscia’s presentation of his
`arguments against this Court's adjudication of the issues take place in the ordinary
`course as set forth by the rules of this Court.
`
`Respectfully s ,
`
`
`
`Kenneth M. Kliebard
`
`KMK/h
`
`cc: Counsel of Record (via e-mail and ECF)