Commodity Futures Trading Commission v. Svejda et al

Filing 53

ORDER Counsel have until August 8, 2022, to notify the undersigned magistrate judge whether any discovery disputes remain outstanding. Ordered by Magistrate Judge Michael D. Nelson. (LRM)

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
COMMODITY FUTURES TRADING
COMMISSION,
Plaintiff,
vs.

8:21CV311
ORDER

TERRY MICHAEL SVEJDA, and
CENTURION CAPITAL MANAGEMENT,
INC.,
Defendants.
This matter comes before the Court following a telephone conference held with counsel for
the parties on August 1, 2022. In accordance with the discussion held on the record,
IT IS ORDERED:
1. Counsel have until August 8, 2022, to notify the undersigned magistrate judge whether
any discovery disputes remain outstanding.
2. Regarding Plaintiff’s RFP 1 seeking all communications between Defendants and Doug
Hays:
a. On or before August 8, 2022, Defendants may suggest to Plaintiff search terms
to limit the number of responsive documents. If counsel agree to search terms,
Defendants shall produce responsive documents on or before September 2,
2022.
b. If counsel cannot agree on search terms, Defendants shall produce all nonprivileged communications responsive to RFP 1 by September 2, 2022. Plaintiff
shall review Defendants’ production and, on or before October 14, 2022, shall
identify the documents it deems relevant to its claims.
3. On or before September 2, 2022, Defendants shall produce all documents responsive to
Plaintiff’s RFP 8 seeking all communications between Defendants and Decadian
customers relating to the Complaint.
4. The deposition and summary judgment deadlines are stayed pending the completion of
written discovery, and will be reset during the planning conference set on October 14,
2022.
Dated this 1st day of August, 2022.
BY THE COURT:
s/Michael D. Nelson
United States Magistrate Judge

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Moving Party:

Commodity Futures Trading Commission

Commodity Futures Trading Commission v. Centurion Capital Management, Inc. and Terry Michael Svejda, No. 21-cv-00311-JMGMDN
To assist the Court in more efficiently addressing the parties’ discovery dispute(s), the parties shall meet and confer, and jointly complete the following
chart. The purpose of this chart is to succinctly state each party’s position and the last compromise offered when the parties met and conferred. The
fully completed chart shall be e-mailed to chambers of the assigned magistrate judge. The disputes concern Defendants’ responses to Plaintiff’s
Second Set of Requests for Production of Documents (attached as Exhibit 1).
The moving party is:

Plaintiff, Commodity Futures Trading Commission

The responding party is:

Defendants

Discovery Request
at Issue

Relevant to prove...

Moving Party’s Initial
Position

Responding Party’s
Initial Position

RFP No. 1: “All
communications between
you and Doug Hays, who is
identified as Senior Market
Analyst for Decadian in
CENTURION 000045,
relating to Decadian.”

Fraud in Connection
with Commodity
Futures Contracts
(Count 1);
Commodity Pool
Fraud (Count 2)

Mr. Hays is identified in
Decadian’s corporate
documents and in
customer solicitations as
the Senior Market Analyst
for Decadian.
Communications between
Svejda and Hays that
relate to Decadian are
relevant to the claims at
issue, a point that
Defendants do not appear
to contest.

The Request is
overbroad, unduly
burdensome, seeks
irrelevant information,
and is not proportional
to the needs of this
case. The Request
seeks all
communications with
an individual over a
seven-year period,
including
communications that
have nothing to do
with the very narrow
claims presented by
the CFTC. The
Request encompasses
many thousands of
emails, many, if not
most or all of which
have no bearing on the
issues in dispute.

1

Moving Party’s Last
Offered Compromise
The CFTC has
attempted to address
Defendants’
overbreadth objection
by agreeing to limit this
request to email
communications where
Mr. Hays appears in the
To/From/CC/Bcc fields
and which include the
term “Decadian.” The
CFTC further advised
Defendants that it is
willing to consider
specific proposals to
further narrow the
search, but Defendants
have not offered
additional proposals,
simply declining to
produce documents.

Responding
Party’s Last
Offered
Compromise
The CFTC’s
proposed limitation
is no limitation at
all. Further,
Defendants have
not identified any
need or relevance
for the
communications.
Defendants
proposed that if the
CFTC were to
identify a particular
subject or subjects
that it is seeking
with respect to the
communications
with Mr. Hays,
Defendants would
be willing to
further discuss the
feasibility and
burden of location

Court’s Ruling

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Moving Party:

Discovery Request
at Issue

RFP No. 8: “All
communications between
you and any Decadian
customers, relating to the
Complaint filed in the
present action.”

Counsel for Plaintiff:

Relevant to prove...

All counts (Counts
1-5)

Moving Party’s Initial
Position

Responding Party’s
Initial Position

CFTC issued this request
after learning that Mr.
Svejda recently attempted
to communicate with
many of the 27 Decadian
customers identified in
the Complaint about the
merits of the claims in
this action, and possibly
made additional
misrepresentations about
the funds at issue. These
communications with
Decadian customers are
clearly relevant to the
claims and defenses at
issue. Moreover, there is
no meaningful argument
that producing a small
number of
communications with
Decadian customers will
unduly burden
Defendants.

The request is unduly
burdensome and not
proportional to the
needs of the case. At
the onset of this
proceeding, counsel
collected email
communications
through that date and
has produced
approximately 20,000
pages of documents,
nearly all of which
have no bearing on the
very narrow issues in
dispute. To respond to
this request,
Defendants would
have to rerun a
collection of their
emails and process
them through
counsel’s software.
The number of email
communications is
believed to be very
small and Defendants
dispute the relevance
and proportionality of
the request.

/s/ Aimée Latimer-Zayets

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Commodity Futures Trading Commission

Moving Party’s Last
Offered Compromise

Responding
Party’s Last
Offered
Compromise
and producing said
communications.
The CFTC refused
to identify any
subjects for the
communications.
Defendants
collected and
produced all text
messages with the
27 investors
through
approximately June
2022. Additional
documents and
information about
email
communications
can be sought
through discovery
of the investors,
including through
their depositions.
Most
communications
with investors have
been oral.

Court’s Ruling

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Moving Party:

Counsel for Defendants:

/s/ Adam W. Barney

Date: July 29, 2022.
4862-5479-8124, v. 1

3

Commodity Futures Trading Commission

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
COMMODITY FUTURES TRADING
COMMISSION,
Plaintiff,
v.
CENTURION CAPITAL MANAGEMENT,
INC. AND TERRY MICHAEL SVEJDA,
Defendants.

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Case No.
8:21-cv-00311-JMG-MDN

PLAINTIFF’S SUMMARY OF PARTIES’ DISCOVERY DISPUTE

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Plaintiff Commodity Futures Trading Commission (“CFTC”) hereby submits this
summary of the parties’ discovery dispute, which is based upon Defendants’ refusal to produce
documents responsive to two of the CFTC’s Second Set of Requests for Production of
Documents. 1 Both requests are narrowly tailored, proportional, and relevant to the claims and
defenses in this case.
1.

Request No. 1: “All communications between you and Doug Hays, who is identified
as Senior Market Analyst for Decadian in CENTURION 000045, relating to
Decadian.”
Defendants have refused to produce communications with Doug Hays, arguing that this

request seeks irrelevant information. 2 However, documents produced by Defendants establish that
Mr. Hays is a key witness in this matter. 3 Decadian marketing materials identify Mr. Hays and
Mr. Svejda as Decadian’s two primary employees operating the Decadian business. The same
marketing materials state that Hays is a “senior market analyst and research analyst.” 4 Defendants
sent such materials to actual and prospective commodity pool participants. 5 Moreover, internal
Decadian documents show Hays was a registered agent for one of the commodity pools identified
in the same marketing materials, as well as the intended manager of the pool. 6 The existence of
these commodity pools is a key fact disputed by Defendants. 7 Communications between Mr.
See attached Exh. 1, Defs.’ Resp. to Plaintiff’s Second Set of Reqs. for Produc. of Docs. In addition, with respect
to Plaintiff’s First Set of Interrogatories, Defendants have failed to submit a written response. Therefore, once
Defendants respond, the parties may have additional discovery disputes that require the Court’s assistance.

1

Defendants’ relevance argument is undercut by their production of several communications with Mr. Hays. See,
e.g., CENTURION 019574, attached as Exh. 2.

2

The Commission did not learn of Mr. Hays’ involvement in Decadian until after reviewing documents produced by
Defendants, because Defendants did not identify Mr. Hays in their Rule 26 Initial Disclosures or Supplemental
Disclosures. See Exh. 3.

3

4

See, e.g., CENTURION 000025, attached as Exh. 4, at 10.

5

See, e.g., id. at 1.

See CENTURION 019326 and CENTURION 019536, attached as Exh. 5; Exh. 4 at 9.
See March 8, 2022 correspondence from defense counsel, attached to ECF #34, at 1 (“Despite now knowing that
Defendants explicitly told investors that their funds would be used for purposes other than operating a commodities
pool, the CFTC has persisted in its misguided claims.”)
6

7

1

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Svejda and Mr. Hays relating to the Decadian business therefore are indisputably relevant to this
litigation.
Significantly, the Court previously ordered Defendants to produce documents responsive
to a similar document request. Request No. 7 of Plaintiff’s First Set of Document Requests sought
“[a]ll communications between you and Mark D. Svejda, and all documents sent to or received
from Mark D. Svejda, relating to Centurion and/or Decadian.” Like Hays, Mark Svejda was
identified in the Decadian marketing materials as having “involvement in the Decadian business.”
[ECF #34] Accordingly, this Court overruled Defendants’ relevance objections to this Request,
and the District Court affirmed that ruling. [ECF #34, 44] For the same reasons, Defendants’
relevance objections to Request No. 1 of Plaintiff’s Second Set of Document Requests should also
be overruled.
Defendants further assert that this request is overbroad and not proportional to the needs of
the case. The CFTC attempted to resolve Defendants’ proportionality concerns by agreeing to
limit Request No.1 to email communications in which Mr. Hays appears in the To/From/CC/Bcc
fields, and which also include the term “Decadian.” Moreover, the CFTC encouraged Defendants
to make additional proposals to further narrow the search, but Defendants did not provide any such
proposals. Accordingly, Plaintiff requests that the Court overrule Defendants’ proportionality
objections, and order Defendants to produce documents responsive to Request No. 1.
2. Request No. 8: “All communications between you and any Decadian customers,
relating to the Complaint filed in the present action.”
Plaintiff issued Request No. 8 after learning that Mr. Svejda recently attempted to
communicate with at least some of the 27 Decadian customers identified in the Complaint about
the merits of this action. The Commission is concerned that Svejda may have made additional
misrepresentations to one or more of the Decadian customers. Defendants have produced text

2

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messages responsive to this request, but have declined to produce responsive emails.
Defendants’ production of text messages responsive to Request No. 8 reflects their
acknowledgement that such communications are relevant to the claims and defenses at issue.
Moreover, there can be no meaningful argument that producing a small number of emails, from a
brief time period, will unduly burden Defendants. Accordingly, the Commission requests that the
Court overrule Defendants’ relevance and proportionality objections to Request No. 8, and order
Defendants to produce responsive email communications with Decadian customers that relate to
the Complaint in this action.

Dated: July 29, 2022

Respectfully submitted,
/s/ Aimée Latimer-Zayets
Aimée Latimer-Zayets, DC Bar No. 476693
Glenn I. Chernigoff, D.C. Bar No. 488500
Sean P. Hennessy, DC Bar No. 1011564
COMMODITY FUTURES TRADING COMMISSION
1155 21st Street, N.W.
Washington, D.C. 20581
[e-mail]
[e-mail]
[e-mail]
[phone] (direct) (Latimer-Zayets)
[phone] (facsimile)

3

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EXHIBIT 1

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
COMMODITY FUTURES TRADING
COMMISSION,
Plaintiff,
v.
CENTURION CAPITAL
MANAGEMENT, INC. and TERRY
MICHAEL SVEJDA,
Defendants.
TO:

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Case No.: 8:21-cv-00311

DEFENDANTS’ RESPONSE TO
PLAINTIFF’S SECOND SET OF
REQUESTS FOR PRODUCTION
OF DOCUMENTS

COMMODITY FUTURES TRADING COMMISSION, Plaintiff, by and
through its attorneys of record
GENERAL OBJECTIONS
Defendants object to each and every request for production on the grounds

that they were not served in the time period permitted by the amended case
progression order, which required written discovery to be completed by May 31,
2022. The requests for production were served on May 5, 2022, meaning
Defendants’ responses to the requests would be due June 6, 2022, after the
deadline for completion of discovery.
Defendants object to the instructions to the extent they are inconsistent
with, or impose obligations beyond, the Federal Rules of Civil Procedure.
Defendants object to the Definitions on the grounds that they are unduly
burdensome. For example, the term Decadian encompasses multiple, distinct
business entities with different business and purposes, together with any and
all persons that have ever been affiliated with those entities. Giving Decadian the

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definition posed by the CFTC would make some of the requests illogical and
would result in confusion.
REQUESTS
REQUEST NO. 1: All communications between you and Doug Hays, who
is identified as Senior Market Analyst for Decadian in CENTURION 000045,
relating to Decadian.
RESPONSE:

Defendants object to Request No. 1 on the grounds that

it is overbroad, unduly burdensome, seeks irrelevant information, and is not
proportional to the needs of this case. Request No. 1 is not limited to the relevant
issues of the dispute and seeks the production of all communications over a
seven year period with an individual, including communications that have
nothing to do with Decadian, the alleged fraud in this matter, or Defendants
obligations to register. Defendants estimate this request encompasses many
thousands of emails, many, if not most or all of which, have no bearing on the
issues in dispute.
Defendants further reiterate their objection that this request was not
served in the time period permitted by the amended case progression order,
which required written discovery to be completed by May 31, 2022. The requests
were served on May 5, 2022, meaning Defendants’ responses to the responses
would be due June 6, 2022, after the deadline for completion of discovery.

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REQUEST NO. 2:

All communications between you and Debbie

Gatzemeyer, who is identified as a bookkeeper for Centurion and Decadian in
Defendants’ Supplemental Rule 26 Disclosures, relating to Decadian or
Centurion.
RESPONSE:

Defendants object to Request No. 2 on the grounds that

it is overbroad, unduly burdensome, seeks irrelevant information, and is not
proportional to the needs of this case. Request No. 2 is not limited to the relevant
issues of the dispute and seeks the production of all communications over a
seven year period with an individual, including communications that have
nothing to do with Decadian, the alleged fraud in this matter, or Defendants
obligations

to

register.

Defendants

estimate

this

request

encompasses

thousands of emails, many, if not most or all of which, have no bearing on the
issues in dispute. Defendants further object to the extent this request seeks the
production of any documents or communications that would be protected by the
attorney-client privilege, work-product doctrine, or otherwise excludable from
discovery as communications between an attorney and a consulting expert, or
subject to any other applicable privilege.
Defendants further reiterate their objection that this request was not
served in the time period permitted by the amended case progression order,
which required written discovery to be completed by May 31, 2022. The requests
were served on May 5, 2022, meaning Defendants’ responses to the responses
would be due June 6, 2022, after the deadline for completion of discovery.

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REQUEST NO. 3:

All communications between you and Alex Zorab

relating to Decadian.
RESPONSE:

Defendants object to Request No. 3 on the grounds that

it is seeks irrelevant information and is not proportional to the needs of this case.
Alex Zorab and his relationship with Decadian/Centurion/Svejda have no
relevance to this case other than an apparent misunderstanding with respect to
Mr. Zorab led the CFTC to initially investigate Defendants for unrelated alleged
wrongs which have not been alleged in this enforcement action.
Defendants further reiterate their objection that this request was not
served in the time period permitted by the amended case progression order,
which required written discovery to be completed by May 31, 2022. The requests
were served on May 5, 2022, meaning Defendants’ responses to the responses
would be due June 6, 2022, after the deadline for completion of discovery.

REQUEST NO. 4: All documents relating to accounts you managed or
traded for Alex Zorab, including but not limited to accounts at RJ O’Brien.
RESPONSE:

Defendants object to Request No. 4 on the grounds that

it is seeks irrelevant information and is not proportional to the needs of this case.
Alex Zorab and his relationship with Decadian/Centurion/Svejda have no
relevance to this case other than an apparent misunderstanding with respect to
Mr. Zorab led the CFTC to initially investigate Defendants for unrelated alleged
wrongs which have not been alleged in this enforcement action.

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Defendants further reiterate their objection that this request was not
served in the time period permitted by the amended case progression order,
which required written discovery to be completed by May 31, 2022. The requests
were served on May 5, 2022, meaning Defendants’ responses to the responses
would be due June 6, 2022, after the deadline for completion of discovery.

REQUEST NO. 5:

All documents and communications relating to in-

person meetings, videoconferences, and/or teleconferences with Decadian
customers, shareholders and/or investors, including but not limited to a meeting
that occurred on approximately February 4, 2017.
RESPONSE:

Defendants reiterate their objection that this request

was not served in the time period permitted by the amended case progression
order, which required written discovery to be completed by May 31, 2022. The
requests were served on May 5, 2022, meaning Defendants’ responses to the
responses would be due June 6, 2022, after the deadline for completion of
discovery.

REQUEST NO. 6: All documents relating to the calculation of percentage
stock ownership reported to Decadian customers, shareholders and/or investors
on Internal Revenue Service Schedule K-1 (Form 1120s).
RESPONSE:

Defendants reiterate their objection that this request

was not served in the time period permitted by the amended case progression
order, which required written discovery to be completed by May 31, 2022. The

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requests were served on May 5, 2022, meaning Defendants’ responses to the
responses would be due June 6, 2022, after the deadline for completion of
discovery.

REQUEST NO. 7: All retainer or fee agreements between you and Mark
D. Svejda relating to Decadian or Centurion.
RESPONSE:

Defendants reiterate their objection that this request

was not served in the time period permitted by the amended case progression
order, which required written discovery to be completed by May 31, 2022. The
requests were served on May 5, 2022, meaning Defendants’ responses to the
responses would be due June 6, 2022, after the deadline for completion of
discovery.

REQUEST NO. 8: All communications between you and any Decadian
customers, relating to the Complaint filed in the present action.
RESPONSE:

Defendants reiterate their objection that this request

was not served in the time period permitted by the amended case progression
order, which required written discovery to be completed by May 31, 2022. The
requests were served on May 5, 2022, meaning Defendants’ responses to the
responses would be due June 6, 2022, after the deadline for completion of
discovery.

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REQUEST NO. 9:

All documents, from 2012 to present, relating to

accounts you own or control, and which reference funds you received from the
following Decadian customers: Steve Paschold, Burt Ligenfelter, Steve Nelson,
Dan Niles, Mike Thys, and Gary Peregrine.
RESPONSE:

Defendants object to Request No. 9 on the grounds that

it is overbroad, unduly burdensome, seeks irrelevant documents and is not
proportional to the needs of this case in that it seeks documents outside the
applicable statute of limitations.
Defendants further reiterate their objection that this request was not
served in the time period permitted by the amended case progression order,
which required written discovery to be completed by May 31, 2022. The requests
were served on May 5, 2022, meaning Defendants’ responses to the responses
would be due June 6, 2022, after the deadline for completion of discovery.

REQUEST NO. 10: All documents referred to in your answers to Plaintiff’s
First Set of Interrogatories to Defendant Terry Michael Svejda.
RESPONSE:

Defendants reiterate their objection that this request

was not served in the time period permitted by the amended case progression
order, which required written discovery to be completed by May 31, 2022. The
requests were served on May 5, 2022, meaning Defendants’ responses to the
responses would be due June 6, 2022, after the deadline for completion of
discovery.

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REQUEST NO. 11:

All documents that you relied upon to answer

Plaintiff’s First Set of Interrogatories to Defendant Terry Michael Svejda.
RESPONSE:

Defendants reiterate their objection that this request

was not served in the time period permitted by the amended case progression
order, which required written discovery to be completed by May 31, 2022. The
requests were served on May 5, 2022, meaning Defendants’ responses to the
responses would be due June 6, 2022, after the deadline for completion of
discovery.

CENTURION CAPITAL MANAGEMENT, INC. and
TERRY MICHAEL SVEJDA, Defendants
By:

s/ Adam W. Barney
Adam W. Barney #24521
CLINE WILLIAMS
WRIGHT JOHNSON & OLDFATHER, L.L.P.
Sterling Ridge
12910 Pierce Street, Suite 200
Omaha, NE 68144
Telephone: [phone]
Facsimile: [phone]
[e-mail]

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CERTIFICATE OF SERVICE
I, Adam W. Barney, hereby certify that on June 6, 2022, a copy of the
foregoing document was emailed to counsel at the following email address(es):
Glen I. Chernigoff
U.S. CFTC
[e-mail]
Aimee Latimer-Zayets
U.S. Commodity Futures Trading Commission
[e-mail]
Sean P. Hennessy
U.S. CFTC
[e-mail]

s/ Adam W. Barney

4862-8365-5198, v. 1

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EXHIBIT 2

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EXHIBIT 3

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
COMMODITY FUTURES TRADING
COMMISSION,
Plaintiff,
v.
CENTURION CAPITAL
MANAGEMENT, INC. and TERRY
MICHAEL SVEJDA,
Defendants.

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Civil Case No. 8:21-CV-00311

DEFENDANTS’ RULE 26 INITIAL
DISCLOSURES

Pursuant to Federal Rule of Civil Procedure 26(a)(1), Defendants Centurion
Capital Management, Inc. and Terry Michael Svejda, make their initial required
disclosures to Plaintiff Commodity Futures Trading Commission as follows:
A.
The name and, if known, the address and telephone number of each
individual likely to have discoverable information—along with the subjects of
that information—that the disclosing party may use to support its claims or
defenses, unless the use would be solely for impeachment:
Name
Terry Michael
Svejda

Contact Information
May be contacted through counsel

Investors in
Decadian LLC

Upon information and belief, the
investors of Decadian LLC and
their contact information have
been previously disclosed to
Plaintiff. Defendants are not
certain which investors, if any,
they may use to support its
claims. Defendants will

Subjects
 Communications with
investors and potential
investors in Decadian, LLC
 Purpose of Decadian LLC
and business plans for
future
 Creation of Decadian
Wealth Fund I, LLC and
submissions and
registrations with respect
to the same
 Disclosures made by
Svejda with respect to
investments in Decadian
LLC

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supplement this disclosure as the
case progresses.

B.
A copy—or a description by category and location—of all documents,
electronically stored information, and tangible things that the disclosing party
has in its possession, custody, or control and may use to support its claims or
defenses, unless the use would be solely for impeachment.
Defendants identify the following categories of documents in their
possession:
1.

Email correspondence soliciting investors and potential investors
regarding investments in Decadian LLC.

2.

Operating Agreement of Decadian LLC.

3.

Financial records of Centurion and Decadian LLC.

4.

Operating Agreement and other governance documents for Decadian
Wealth Fund I, LLC, including private offering memorandum.

5.

Submissions to and approvals by the NFA regarding Decadian
Wealth Fund I, LLC.

C.
Rule 26(a)(1)(A)(iii) Disclosure. A computation of each category of
damages claimed by the disclosing party — who must also make available for
inspection and copying as under Rule 34 the documents or other evidentiary
material, unless privileged or protected from disclosure, on which each
computation is based, including materials bearing on the nature and extent of
injuries suffered.
N/A.
D.
Rule 26(a)(1)(A)(iv) Disclosure. For inspection and copying as under
Rule 34, any insurance agreement under which an insurance business may be
liable to satisfy all or part of a possible judgment in the action or to indemnify or
reimburse for payments made to satisfy the judgment.
None.

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CENTURION CAPITAL MANAGEMENT, INC. and
TERRY MICHAEL SVEJDA, Defendants
By:

s/ Adam W. Barney
Adam W. Barney #24521
CLINE WILLIAMS
WRIGHT JOHNSON & OLDFATHER, L.L.P.
Sterling Ridge
12910 Pierce Street, Suite 200
Omaha, NE 68144
Telephone: [phone]
Facsimile: [phone]
[e-mail]

CERTIFICATE OF SERVICE
I, Adam W. Barney, hereby certify that on November 15, 2021, I served the
foregoing document on the following individuals by electronic mail:
Glen I. Chernigoff
U.S. CFTC
[e-mail]
Aimee Latimer-Zayets
U.S. Commodity Futures Trading Commission
[e-mail]

s/ Adam W. Barney
4884-4986-0099, v. 1

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
COMMODITY FUTURES TRADING
COMMISSION,
Plaintiff,
v.
CENTURION CAPITAL
MANAGEMENT, INC. and TERRY
MICHAEL SVEJDA,
Defendants.

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Civil Case No. 8:21-CV-00311

DEFENDANTS’ SUPPLEMENTAL
RULE 26 INITIAL DISCLOSURES

Pursuant to Federal Rule of Civil Procedure 26(a)(1), Defendants Centurion
Capital Management, Inc. and Terry Michael Svejda, supplement their initial
disclosures to Plaintiff Commodity Futures Trading Commission as follows:
A.
The name and, if known, the address and telephone number of each
individual likely to have discoverable information—along with the subjects of
that information—that the disclosing party may use to support its claims or
defentses, unless the use would be solely for impeachment:
Name
Terry Michael
Svejda

Contact Information
May be contacted through counsel

Investors in
Decadian LLC

See attached Exhibit A which
discloses the names and contact
information for investors in
Decadian LLC
May be contacted through counsel

Debbie Gatzemeyer

Subjects
x Communications with
investors and potential
investors in Decadian, LLC
x Purpose of Decadian LLC
and business plans for
future
x Creation of Decadian
Wealth Fund I, LLC and
submissions and
registrations with respect
to the same
x Disclosures made by
Svejda with respect to
investments in Decadian
LLC
x Bookkeeping for Centurion
and Decadian

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B.
A copy—or a description by category and location—of all documents,
electronically stored information, and tangible things that the disclosing party
has in its possession, custody, or control and may use to support its claims or
defenses, unless the use would be solely for impeachment.
Defendants identify the following categories of documents in their
possession, all of which are located at the home of Defendant Svejda and/or in
possession of counsel for Defendants at their offices:
1.

Email correspondence soliciting investors and potential investors
regarding investments in Decadian LLC.

2.

Operating Agreement of Decadian LLC.

3.

Financial records of Centurion and Decadian LLC.

4.

Operating Agreement and other governance documents for Decadian
Wealth Fund I, LLC, including private offering memorandum.

5.

Submissions to and approvals by the NFA regarding Decadian
Wealth Fund I, LLC.

C.
Rule 26(a)(1)(A)(iii) Disclosure. A computation of each category of
damages claimed by the disclosing party — who must also make available for
inspection and copying as under Rule 34 the documents or other evidentiary
material, unless privileged or protected from disclosure, on which each
computation is based, including materials bearing on the nature and extent of
injuries suffered.
N/A.
D.
Rule 26(a)(1)(A)(iv) Disclosure. For inspection and copying as under
Rule 34, any insurance agreement under which an insurance business may be
liable to satisfy all or part of a possible judgment in the action or to indemnify or
reimburse for payments made to satisfy the judgment.
None.

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CENTURION CAPITAL MANAGEMENT, INC. and
TERRY MICHAEL SVEJDA, Defendants
By:

s/ Adam W. Barney
Adam W. Barney #24521
CLINE WILLIAMS
WRIGHT JOHNSON & OLDFATHER, L.L.P.
Sterling Ridge
12910 Pierce Street, Suite 200
Omaha, NE 68144
Telephone: [phone]
Facsimile: [phone]
[e-mail]

CERTIFICATE OF SERVICE
I, Adam W. Barney, hereby certify that on January 26, 2022, I served the
foregoing document on the following individuals by electronic mail:
Glen I. Chernigoff
U.S. CFTC
[e-mail]
Aimee Latimer-Zayets
U.S. Commodity Futures Trading Commission
[e-mail]

s/ Adam W. Barney

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EXHIBIT 4

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EXHIBIT 5

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July 29, 2022
Magistrate Judge Michael D. Nelson
[e-mail]
Re:

CFTC v. Centurion Capital Management, Inc.
Case No. 8:21-cv-00311-JMG-MDN

Your Honor,
Thank you for your time on this matter. This telephonic conference is a
follow up to the parties’ prior conference. Since that time, the parties have further
met and conferred and have been able to resolve the vast majority of their
disputes. Two issues remain.
First, the CFTC is seeking the production of all communications between
Defendants and Doug Hays for the period of 2015 to present that are related to
Decadian. Mr. Hays was an independent contractor for Decadian, involved in its
day-to-day operations. Defendants have run a rough search of their documents
using the term: “‘Doug Hays’ and decadian”. This search results in over 5000
hits, the vast majority of which, at initial glance, appear to be responsive to the
CFTC’s overbroad document request. The communications include mundane
day-to-day operational communications, as would be expected when you request
all communications related to the company at which that the individual worked.
While Defendants can readily identify the potentially responsive documents, an
extensive review of those documents would be required prior to production.
The issues in this case are incredibly narrow. The CFTC primarily argues
that Defendants defrauded investors (which the CFTC inaccurately refers to as
customers) by telling them their money would be used for a commodity pool, but,
instead, the money was used for business and purported personal expenses.1
The CFTC also alleges that Defendants failed to properly register with the
government as a CPO and an AP of a CPO. The request for all communications
1 In discovery, Defendants have learned that, in interviews that were conducted prior to the filing
of the complaint, investors expressly denied the allegations that the CFTC has put forth.
Investors told the CFTC that Defendants never made the representations that form the basis for
the CFTC’s fraud action. One example is enclosed.

{0450128.1}

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with Doug Hays is not narrowly tailored to these issues. Defendants asked the
CFTC to identify topics or subjects that would involve Doug Hays to narrow the
request. The CFTC refused to do so, indicating only that they would agree to a
search for communications with Mr. Hays that included the term Decadian. But
that is no limitation at all, particularly when many of the communications
involving Mr. Hays would have been sent or received by an email address that
included “@decadian.com.”
Second, the CFTC has requested all communications between Defendants
and the Decadian investors related to the Complaint filed in the present action.
There is no apparent relevance to these communications to the narrow issues in
this case. Beyond that, and practically speaking, the request imposes an undue
burden on Defendants. At the onset of these proceedings, counsel collected
Defendants’ email communications for purposes of discovery. That collection
went through, approximately, the date of the filing of the Complaint. To respond
to this request, Defendants would need to rerun a collection of Defendants’ email,
process those documents, then search for responsive communications. This
process is unnecessary for the marginal, if any, relevance that these limited
communications would have to this case.
In an effort to compromise, Defendants collected and produced all text
message correspondence between Defendants and the investors through
approximately June 2022, which includes communications related to the
Complaint. Those text messages reveal that Defendants had oral
communications with the investors about the Complaint. They also reveal that
many of the investors have actually contributed to a defense fund for Defendants,
to defend against the claims that the CFTC purports to bring on behalf of those
very same investors. To the extent the CFTC desires to inquire about Defendants’
communications with investors after the filing of the Complaint, the CFTC will
have the opportunity to ask those investors about the communications during
depositions. They can also inquire about the communications during Mr.
Svejda’s deposition. The CFTC can alternatively issue subpoenas for written
communications at the time of investor depositions.
Defendants respectfully request that the CFTC’s request for an additional
document production that is not tailored to the issues in this case be denied.
Respectfully submitted,
/s/ Adam W. Barney
Adam W. Barney
For the Firm
4883-1400-4524, v. 1

{0450128.1}

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