SIDE BAR: The following December 2013 FINRA Disciplinary Notices were published concerning Pompeo [Ed: yellow highlighting provided]:

SIDE BAR: The following February 2013 FINRA Disciplinary Notices were published concerning Schloth:

William Edward Schloth (CRD #2644188, Registered Principal, Fairfield, Connecticut) submitted an Offer of Settlement in which he was fined $20,000 and suspended from association with any FINRA member in any principal capacity for 22 months. The fine must be paid either immediately upon Schloth's reassociation with a FINRA member firm following his suspension, or prior to the filing of any application or request for relief from any statutory disqualification, whichever is earlier. Without admitting or denying the allegations, Schloth consented to the described sanctions and to the entry of findings that he was the principal at his member firm responsible for supervising a registered representative. The findings stated that Schloth knew that the representative had a business arrangement with a non-registered and statutorily disqualified individual. Schloth failed to implement a system to appropriately supervise, or otherwise monitor, the representative and the individual's relationship to ensure that the representative was not aiding and abetting the individual to participate in the securities business despite his non-registered and statutorily disqualified status. The findings also stated that Schloth did nothing to adequately supervise this relationship. Schloth did not independently verify the representative's representations to him, that she was not facilitating trades for the individual or paying him for a commission-driven business. Schloth did not review the Service Agreement of the individuals, of which his firm was aware of and had approved. Schloth did not request from the representative her business' general ledger or bank statements, or copies of the non-registered individual's business invoices issued to the representative's business. The findings also included that while Schloth represented to FINRA that following the examination of the firm he periodically requested and reviewed the representative's business general ledgers and the non-registered individual's business invoices, at no point did he do anything else to independently verify the scope of her relationship with the individual or his business, or otherwise follow up on any red flags that should have put him on notice to heighten or otherwise alter his supervision of the representative. Schloth did not independently contact her brokers, traders or public customers to inquire whether the non-registered individual was involved in the trading activity.The suspension is in effect from September 16, 2013, through July 15, 2015. (FINRA Case #2010025087302)

William Edward Schloth (CRD #2644188, Registered Principal, Fairfield, Connecticut) submitted a Letter of Acceptance, Waiver and Consent in which he was fined $20,000 and suspended from association with any FINRA member in any principal capacity for six months. The fine must be paid either immediately upon Schloth's reassociation with a FINRA member firm following his suspension, or prior to the filing of any application or request for relief from any statutory disqualification, whichever is earlier. Without admitting or denying the findings, Schloth consented to the described sanctions and to the entry of findings that as CEO, chief financial officer (CFO) and FINOP of the firm, Schloth handled all investment banking responsibilities at the firm, including interactions with current and potential banking clients, conducting due diligence on possible investment banking deals to be sold by the firm and supervising any private placement transactions. The findings stated that Schloth was responsible for the firm's WSPs; however, he was not the firm's CCO or municipal securities principal. Schloth failed to conduct adequate due diligence on a firm private placement offering and failed to ensure that the firm established, maintained and enforced an adequate supervisory system, including WSPs, addressing due diligence of private placements. The findings also stated that Schloth was the registered principal responsible for the supervision of all firm registered representatives when a registered representative sent an email regarding a private placement offering to current and prospective investors. The email, which Schloth reviewed and approved, constituted a communication with the public and contained various false and misleading statements. The findings also included that Schloth failed to ensure that the firm established, maintained and enforced an adequate supervisory system, including WSPs, addressing, inter alia, municipal securities, safeguarding customer information and the retention of business-related communications. The WSPs were not tailored to address the needs of the firm's business and they provided little useful guidance as to what reviews and other supervisory steps were required by firm personnel. Schloth also failed to enforce certain firm procedures, including those requiring the firm to contract with its clearing firm to provide material disclosures to customers prior to purchasing a municipal security, relating to the inspection of the firm's branch offices and regarding the use of personal email addresses for sending business related emails. The suspension is in effect from September 16, 2013, through March 15, 2014. (FINRA Case #2012030527501)

43. The electronically stored records initially produced by Smarsh in the Southridge Proceeding and delivered by Enforcement in late 2013 contained less than sixty thousand (60,000) records in .pst format, allegedly emails attributable to LK and her sister-assistant; the email records for LK and produced by Smarsh in the Ocean Cross Proceeding contained fewer records purporting to be LK's emails than LK's Bloomberg records for the comparable period of time.  

44. The spoliation observed by the computer technician retained in March 2014 included tens of thousands of emails with language added to sender line descriptions, the substitution or insertion of inaccurate sender and recipient names, formatting and time differences, lost and incomplete content, and multiple copies of the same communication in different formats; further, because Mr. North was familiar with the large number of email communications for the Southridge and Ocean Cross firms, it appeared that tens of thousands of  6 LK was also a co-respondent in the Southridge Proceeding.  
 . . .  

46. In a Declaration dated July 30, 2014, Dustin Sachs, Managing Consultant with Navigant Legal Technology Solutions, confirmed the findings of the computer technician that certain CDs/DVDs delivered by Enforcement contained permanent read errors and certain anomalies, formatting and content differences existed in the data produced by Smarsh that were not present in the original source emails from the Bloomberg accounts of LK and TC.  
 . . .  

55. In February and March 2015, Berryhill Computer Forensics, Inc. ("Berryhill") examined the data allegedly preserved by Smarsh and ultimately delivered by FINRA to the parties in the disciplinary proceedings against Messrs. North and Pompeo; Berryhill determined the following: My conclusion, based on the evidence I have examined to date, is that FINRA has been massively misled by Smarsh. The data produced by Smarsh has been altered and manipulated to the point of being nearly unrecognizable when compared to the original source data. Among the many problems I have observed are date and time stamps that have been altered, sender and recipient header information changed, and body content altered or deleted. Overall, these give a misleading and false impression of the facts in this case. The errors and other problems I have highlighted in this report are not occasional occurrences found in only a few messages. They are examples among hundreds of thousands of systematic and widespread failures in how Smarsh has collected, processed and produced the data for which they are supposed to be a neutral third party repository.  See Declaration of Jon Berryhill dated March 2, 2015 ¶ 5, marked Exhibit 8.  

56. Berryhill further concluded:  

The scope of spoliation of the emails is so broad that no information produced through Smarsh can be deemed reliable. This would include not only the header information and content of any message or groups of messages, but also any reports or summaries derived from or referencing those messages. The multiple and repeated failures of Smarsh's processes leave me with no confidence in anything they produce. (Emphasis added.)  Id. ¶ 24.  

57. Regarding the CDs/DVDs produced on October 15, 2014, Berryhill continued:  The flawed processing by Smarsh has led to even the most fundamental of errors in identifying evidence data types. Ms. Miller provided to me two DVDs identified as  FINRA production no. 2010025087302, discs 1 and 2. These two discs contain more than 9GB of data saved in PST format in 8 separate files. It was represented to me that FINRA was told by Smarsh that these two discs, produced by Smarsh, contained some 190,000 instant messages recovered from the Bloomberg archives, but that had some how been previously "overlooked."  

. . .

This XLM data appears to be in the same format, with the same XML tags as all the other Bloomberg messages. I see nothing to indicate they are in any way "instant messages." All of the messages I have observed from these two DVDs are consistent in format . . . I do note that in this case, as with all the other instances of Bloomberg XML data being converted to PST format, that a substantial amount of information has been added that gives a false and misleading impression of the nature and form of these messages. In Smarsh's processing, produced on the PSTs, they have added to the beginning of each (approximately 190,000) message body the text "BB Message". This text does not appear in the originals.  Id. ¶¶ 20-21.  

60. In both the Southridge and Ocean Cross matters, Enforcement claims that spoliation is irrelevant as to the content of the emails and whether or not sufficient email review was conducted; therefore, at no time since bringing concerns about spoliation to the attention of Enforcement in February 2014 and again in July 2014, have either Smarsh or FINRA investigated the claims and explained how and why multiple non-native format versions of email files exist in the records delivered by Smarsh or the spoliation evident in the form of added language, altered time and date formats, lost and incomplete content, and the absence of more than half of the data that should have been preserved by Smarsh in an unalterable, nonrewriteable, and non-erasable format.  .

COUNT I -SPOLIATION OF ELECTRONICALLY STORED INFORMATION BY SMARSH (Intentional Spoliation)  

COUNT II - SPOLIATION OF ELECTRONICALLY STORED INFORMATION BY SMARSH (Spoliation by Gross Negligence)  

COUNT III - SPOLIATION OF ELECTRONICALLY STORED INFORMATION BY SMARSH AND ENFORCEMENT (Negligent Spoliation)

COUNT IV - INJUNCTIVE RELIEF AS TO SMARSH AND ENFORCEMENT

93. Enforcement's instructions to convert ESI to a certain format breached the duty to deliver ESI in native format as to substantial portions of ESI, e.g. Bloomberg messaging, were a proximate and contributing cause of spoliation to the ESI, resulted in the foreseeable harm of unwarranted disciplinary actions against Plaintiffs, the failure of evidence to defend against such actions, damage to their reputations, loss or reduction of employment and income, and caused them to incur attorneys fees, court costs, and the costs associated with proving the spoliation, all in amounts to be proven at trial.

. . .

98. In this case, a computer technician, a consultant from Navigant, and Berryhill  independently concluded that pervasive spoliation to ESI allegedly preserved by Smarsh  occurred; at no time did Plaintiffs handle or process the ESI, therefore, Messrs. North and  Pompeo are likely to prevail on the merits of their claim for injunctive relief.  

99. Both Messrs. North and Pompeo suffered irreparable harm when each experienced loss of employment, reduction in wages, and or loss of professional reputation due  to unwarranted and unfounded claims made by FINRA against each, which claims are based  substantially if not exclusively on ESI spoliated due to Smarsh's intentional or grossly negligent  or other negligent handling.  

100. Irreparable harm in the form of unwarranted legal actions will continue to occur  as long as FINRA or any other third party or entity can use or make available for use in  Enforcement and other legal proceedings any ESI processed and spoliated by Smarsh during the  Relevant Period due to Smarsh's intentional or grossly negligent or negligent mishandling.  

101. Neither FINRA nor Smarsh will suffer harm if injunctive relief is granted because it is unlawful to knowingly use corrupted evidence in federal proceedings.  

102. The public interest is furthered by injunctive relief that will prohibit FINRA's use  of spoliated ESI in federal proceedings against Messrs. North and Pompeo because it is unlawful  to knowingly use false or corrupted evidence in federal proceedings; the public interest is better  served by preventing and providing sufficient sanctions for the use of spoliated, false or  corrupted evidence in federal proceedings.  

103. Messrs. North and Pompeo have no adequate remedy at law (a) as long as Smarsh uses protocols and processes that spoliate electronic communications, denies that spoliation occurred, and is willing to testify falsely about its business and performance of its duties; and (b) as long as FINRA contends that spoliation of ESI is irrelevant to lawful defenses to claims and proceedings predominantly, if not entirely, dependent upon spoliated ESI, while using spoliated  evidence in proceedings to advance monetary and non-monetary sanctions that cause permanent and irreversible harm.  

THEREFORE, Plaintiffs pray for:  

a. Judgment against Smarsh and findings that Smarsh agents and or employees  intentionally or with gross neglect spoliated the electronic files used in federal proceedings;  

b. Judgment against Smarsh and findings that Smarsh agents and or employees  negligently spoliated the electronic files used in federal proceedings;  

c. Judgment against FINRA and findings that FINRA agents and or employees negligently contributed to the spoliation of the electronic files used in federal proceedings;  

d. Judgment against one or both defendants to each for present and future lost wages, in the amounts of one million eight hundred twenty-six thousand dollars ($1,826,000) for

Mr. North and one million one hundred twenty-five thousand dollars ($1,125,000) for Mr.  Pompeo, plus costs and allowable attorneys fees;  

e. Judgment against Smarsh for punitive damages based upon economic and other  applicable damages due to Smarsh's intentional conduct or gross neglect in processing ESI  during the Relevant Period;  

f. For permanent injunction, enjoining Defendant Smarsh, and its agents, servants, ;and employees, and all persons acting under, in concert with, or for them from actions and  methods that spoliated the ESI described herein, and enjoining delivery of the spoliated records  described herein to others for use in pending and any future litigation involving Plaintiffs;  

g. For permanent injunction, enjoining Defendant FINRA Enforcement, and its agents, servants, and employees, and all persons acting under, in concert with, or for them from  using the ESI and records described herein and spoliated by Smarsh in pending and any future  Enforcement or other FINRA related litigation involving Plaintiffs . . .