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Case 1:20-cr-00330-PAE Document 545 Filed 12/15/21 Page 5 of 9

of a payout from the EVCP.” (Def. Letter at 4). This argument does not demonstrate relevance
for two reasons. First, that articulation of bias matters only insofar as Carolyn was aware of the
date the EVCP began accepting claims when she decided to cooperate with the Government. But
she testified that she was not aware of that fact, and none of Scarola’s anticipated testimony would
contradict Carolyn’s testimony on that point. (Tr. 1683). This bias theory accordingly has no
factual predicate. Second, even if the defendant’s timeline testimony did go to bias in some way,
the additional facts the defense would elicit from Scarola do not. For instance, Carolyn testified
that she was largely out of touch between 2007 and July 2020, notwithstanding emails forwarded
by Scarola, as noted above. Nothing about that timeline changes if the jury learns that the
Government gave Scarola the contact information for an agent in February 2020. And if it did, it
would serve simply as an end-run around the information the defendant would prefer to elicit, but
which is protected by privilege: the substance of Scarola and Carolyn’s conversations about the
EVCP and cooperation with the Government.

Finally, even if there were some probative value to those details, it is substantially
outweighed by the prejudice and jury confusion associated with calling Carolyn’s counsel to the
stand. See Fed. R. Evid. 403. Imposing such an obligation on Scarola would have an immediate
chilling effect on Carolyn and Scarola’s attorney-client relationship, and it would confuse the jury
by suggesting they should infer the existence and substance of privileged conversations for which
there is no evidence. Whether or not Scarola testifies as the defendant suggests, there will be no
evidence from which the jury can properly conclude that Scarola had any particular conversation
with Carolyn on any topic.

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