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Paul J. Cambria, Jr., NY State Bar No. 15873

(Admitted Pro Hac Vice)

pcambria@lglaw.com

Erin McCampbell, NY State Bar No. 4480166

(Admitted Pro Hac Vice)

emccampbell@lglaw.com

LIPSITZ GREEN SCIME CAMBRIA LLP

42 Delaware Avenue, Suite 120

Buffalo, New York 14202

Telephone (716) 849-1333 / Facsimile (716) 855-1580

Counsel for Defendant Michael Lacey

Thomas H. Bienert, Jr., CA State Bar No. 135311 

(Admitted Pro Hac Vice)

tbienert@bmkattorneys.com

Kenneth M. Miller, CA State Bar No. 151874 

(Admitted Pro Hac Vice)

kmiller@bmkattorneys.com

Anthony R. Bisconti, CA State Bar No. 269230

(Admitted Pro Hac Vice)

tbisconti@bmkattorneys.com

Whitney Z. Bernstein, CA State Bar No. 304917

(Admitted Pro Hac Vice)

wbernstein@bmkattorneys.com

BIENERT, MILLER & KATZMAN, PLC

903 Calle Amanecer, Suite 350

San Clemente, California 92673

Telephone (949) 369-3700 / Facsimile (949) 369-3701

Counsel for Defendant James Larkin

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

United States of America,

Plaintiff, 

v. 

Michael Lacey, James Larkin, Scott 

Spear, John Brunst, Dan Hyer, Andrew 

Padilla, and Joye Vaught,

Defendants. 

No. 18-CR-00422-PHX-SPL (BSB)

REPLY ON CROSS-MOTION FOR

DISCOVERY IN RESPONSE TO 

UNITED STATES’ MOTION TO 

RESOLVE PRIVILEGE ISSUES

Oral argument requested

Evidentiary hearing requested

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TABLE OF CONTENTS

I. INTRODUCTION.................................................................................................. 1

II. ARGUMENT.......................................................................................................... 1

A. Ferrer Cannot Waive Privileges VVMH Holds for Communications Up 

to April 22, 2015. .............................................................................................. 1

B. Ferrer Cannot Waive Privileges Subject to the Joint Representation 

Agreements. ...................................................................................................... 3

C. Judge Campbell’s Order Requiring Production of Specific Documents 

Did Not Establish a Broad Subject Matter Waiver........................................... 6

D. The Government’s Mischaracterizations of the Facts and the Law 

Prove the Need for Discovery........................................................................... 8

III. CONCLUSION .................................................................................................. 111

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TABLE OF AUTHORITIES

Page(s)

Federal Cases

Chevron Corp. v. Pennzoil Co.,

974 F.2d 1158 (9th Cir. 1992) ................................................................................................. 7

Commodity Futures Trading Commission v. Weintraub,

471 U.S. 343 (1971)................................................................................................................. 2

Glidden Co. v. Jandernoa,

173 F.R.D. 459 (W.D. Mich. 1997)..................................................................................... 2, 3

Hernandez v. Tanninen,

604 F.3d 1095 (9th Cir. 2010) ................................................................................................. 6

In re von Bulow,

828 F.2d 94 (2d Cir. 1987) ...................................................................................................... 7

Matter of Grand Jury Subpoena Duces Tecum Dated November 16, 1974, 406 F. 

Supp. 381, 386 (S.D.N.Y. 1975).............................................................................................. 2

Medcom Holding Co. v. Baxter Travenol Laboratories, Inc.,

689 F. Supp. 841 (N.D. Ill. 1988)........................................................................................ 2, 3

PageMasters, Inc. v. Autodesk, Inc.,

2009 WL 825810 (D. Ariz. Mar. 30, 2009)............................................................................. 9

Polycast Tech. Corp. v. Uniroyal, Inc.,

125 F.R.D. 47 (S.D.N.Y. 1989)........................................................................................... 2, 3

United States v. Gonzales,

669 F.3d 974 (9th Cir. 2012) ................................................................................................... 4

United States v. Plache,

913 F.2d 1375 (9th Cir. 1990) ................................................................................................. 6

The Jordan (Bermuda) Inv. Co. Ltd. v. Hunter Green Inv. Ltd.,

2006 WL 2773022 ................................................................................................................... 3

Other Authorities

Paul R. Rice, et al., 2 ATTORNEY-CLIENT PRIVILEGE IN THE U.S. § 9:85 (Dec. 

2017)........................................................................................................................................ 7

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I. INTRODUCTION

The government’s motion to “resolve privilege issues” (Doc. 195; “Mot.”) seeks 

to eliminate all privilege protections for attorney-client communications relating to 

Backpage.com except for claims the government selectively asserts to try to disqualify 

Defendants’ longtime counsel. Defendants noted in opposition (Doc. 235; “Opp.”) that 

the government mischaracterizes the facts regarding the relationship between 

Backpage.com, LLC and its former parent, VVMH; the parties that retained counsel and

hold privileges; and their agreements to be jointly represented and to share and preserve 

privileges. Defendants also showed that the government’s vague and contradictory 

positions about what Carl Ferrer has disclosed about attorney-client communications 

raises serious concerns that the government has already improperly breached privileges. 

Defendants’ opposition therefore included a cross-motion for discovery, asking the 

Court to direct the government to disclose all communications with Ferrer or others about 

dealings with counsel, his purported waivers of privilege, and/or the parties’ joint 

representation agreements, as well as complete disclosure about its review processes, 

whether it has accessed privileged or work product materials, and, if so, the extent of such 

access. The government has provided no response to the cross-motion on the merits. 

Regardless, the government’s assertions underscore its serious misunderstanding of the 

facts and the law, providing added reason the Court should grant discovery. 

II. ARGUMENT

A. Ferrer Cannot Waive Privileges VVMH Holds.

Prior to April 22, 2015—when Backpage.com was sold to Ferrer—VVMH retained 

and directed counsel relating to litigation concerning the website. See Opp. at 4-5, 16-17. 

During this period Ferrer was an employee; he interacted with counsel as a company 

representative and this counsel never represented him personally. Id. at 5, 16. 

The government contests none of this, but claims the only issue is “whether Ferrer 

had authority to execute” “a waiver of Backpage’s corporate attorney-client privilege.” 

(Doc. 269, at 3; “Reply”). It cites Commodity Futures Trading Commission v. Weintraub, 

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471 U.S. 343 (1971), for the proposition that when a company is sold to new management 

“the authority to assert and waive the attorney-client privilege passes as well.” Reply at 

2. But that is not the issue here because prior to April 22, 2015, VVMH held and 

controlled rights as to privileged communications, and VVMH and Defendants still hold 

and control such rights. 

The government goes on to assert that, even if a parent company had and retains 

interests in privileged communications, “the buyer possessed the unilateral right to waive 

the privilege.” Id. at 5. This is simply wrong under the law, and the cases the government 

cites say the opposite. The cases all involved disputes between companies that sold 

subsidiaries and parties that bought them. See id. at 4-6 and the cases cited therein. The 

cases hold that parent and subsidiary companies hold privileges jointly, and in a 

subsequent adverse proceeding between the parties (i.e., between the seller and the 

acquirer), “the privilege [will] not stand as a bar to full disclosure at the instance of any 

one of them.” Polycast Tech. Corp. v. Uniroyal, Inc., 125 F.R.D. 47, 50 (S.D.N.Y. 1989)

(quoting Matter of Grand Jury Subpoena Duces Tecum Dated November 16, 1974, 406 F.

Supp. 381, 386 (S.D.N.Y. 1975)). However, the rule is the opposite for communications 

that concern counsel’s joint defense of the parent and subsidiary against third-party 

claims—in that circumstance, one party cannot waive privileges without consent of all 

parties. See id. (“A joint defense privilege covers conversations between actual or 

potential co-defendants and their attorney or attorneys for any common defense purpose; 

the content of such communications may not be disclosed without the consent of all codefendants.”); Medcom Holding Co. v. Baxter Travenol Laboratories, Inc., 689 F. Supp. 

841, 845 (N.D. Ill. 1988) (refusing to compel disclosure of communications with prior 

joint counsel despite acquiring company’s purported waiver; “[T]he joint defense 

privilege—and its requirement that all former co-defendants consent to any waiver of the 

privilege—applies where a corporate parent and the subsidiary are the joint defendants 

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and the subsidiary is later sold”; “Confidential communications between joint defendants 

and their counsel are shielded from third parties.”).

1

 

Discovery is necessary here because of the government’s incorrect view that Ferrer

could unilaterally waive privileges held by other parties. Defendants are entitled to know, 

for example, whether the government has spoken with Ferrer about dealings with counsel 

who were retained by and represented VVMH on the mistaken premise that Ferrer could 

disclose privileged communications if they merely related to Backpage.com (as it appears 

has happened, see Doc. 192-6 (Ferrer declaration discussing his dealings with DWT)). As 

for the filter team’s review of over 6,500 privileged documents to date, Defendants are 

entitled to know if any of those documents have been disclosed or used, as it appears also 

has happened. See Mot. at 12 (indicating the “filter team” has said the reviewed 

documents concern “how to moderate ads” and the alleged “prevalence of prostitution 

ads”). 

B. Ferrer Cannot Waive Privileges Subject to the Parties’ Joint 

Representation Agreements.

The government similarly misunderstands the parties’ joint representation 

agreements, and, in this regard, offers arguments that are in some senses indecipherable. 

The government seemingly asserts that Defendants have claimed that only Davis 

Wright Tremaine LLP (“DWT”) jointly represented VVMH, Backpage.com, LLC and 

related parties, and so communications with any other counsel are not covered by the 

 

1 See also Glidden Co. v. Jandernoa, 173 F.R.D. 459, 472 (W.D. Mich. 1997) (noting the 

issue before the court was whether prior privileged communications could be disclosed in 

a dispute between a former parent company and an acquirer, and there was no dispute as 

to the “fundamental proposition[] that such communications are generally privileged from 

disclosure to outsiders”); see also The Jordan (Bermuda) Inv. Co. Ltd. v. Hunter Green 

Inv. Ltd., 2006 WL 2773022, at *3 (S.D.N.Y. Sept. 27, 2006) (Polycast and Medcom

represent the inter sese rule that privilege does not bar disclosure among former co clients 

“in a subsequent adverse proceeding between them,” and an interpretation of those cases 

to suggest that “unilateral waiver by any joint client waives the privilege as to third parties 

... is contrary to the general rule”) (emphasis in original; internal quotation omitted). 

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parties’ agreements. See Reply at 7-8.2 As shown previously, many counsel jointly 

represented Ferrer Parties and Medalist Parties, both before and after the sale of 

Backpage.com, including Perkins Coie, Akin Gump, Paul Hastings, and other firms. See 

Opp. at 6, 12 n.14. These and other joint counsel relationships were covered by the 

Common Interest and Litigation Management Agreement, which memorialized the 

parties’ agreements to retain counsel jointly. See id. at 8; Grant Decl. Ex. B (in camera). 

Again the government attempts to confuse the facts to destroy privileges.

3

The government offers another unfathomable argument when it asserts “[t]he First 

Circuit has held that, when an individual corporate officer and a corporation are jointly 

represented by the same attorney, the corporation can unilaterally waive the privilege over 

the individual officer’s objection.” Reply at 8. Whether or not this is a correct statement 

of the law in the Ninth Circuit, it is irrelevant. Defendants (and the Medalist Parties) have 

rights to preclude disclosure of the privileged information to third parties by virtue of their

joint representation agreements; no one claims that Larkin or Lacey were corporate 

officers of Backpage.com, LLC after the April 2015 sale. 

Otherwise, the government confuses the distinction between parties’ agreements to 

jointly retain counsel versus joint defense agreements (“JDA”), where each party has 

separate counsel who work together to defend similar claims against their respective 

 

2 In a similar vein, the government asserts that “Defendants do not claim there are any 

joint representation agreements that involve Elizabeth McDougall,” and “therefore her 

communications are no longer privileged.” Opp. at 14 n.3. But Defendants explained 

before that Ms. McDougall originally was retained by VVMH to act as its general counsel 

and, like other counsel, her relationship and communications were covered by the joint 

representation agreements. See id. at 5 & n.5, 8-9. The government cannot just pretend 

Defendants have not said what they said. 

3 The government also suggests Defendants would have to establish that the parties 

entered into oral joint representation agreements with every lawyer on April 22, 2015. 

Reply at 8. This is also not the law, as the Ninth Circuit recognizes that parties’ 

agreements for joint representation “may be implied from conduct and situation,” and “it 

is clear that no written agreement is required.” United States v. Gonzales, 669 F.3d 974, 

979 (9th Cir. 2012). Here, for the whole of the period from April 22, 2015 through April 

6, 2018, the Ferrer Parties and the Medalist Parties worked with joint counsel, and the 

Common Interest Agreement expressly reflected and confirmed these arrangements. 

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clients. See id. at 9. The government acknowledges Ferrer cannot “unilaterally waive any 

joint-defense privileges that may exist between him, Lacey and Larkin” and says it is “not 

seeking access to any [such] materials.” Id. at 9 (emphasis in original). Then the 

government asserts there are no rights to claim “joint defense privilege” because it says 

the documents before its “filter team” are not covered by the JDA entered into by Messrs. 

Larkin, Lacey, Ferrer and others (see Grant Decl. Ex. B). Id. at 10. Consistent with its 

tack throughout, the government asserts that Defendants must simply take its word about 

the materials it has or has not reviewed, while accepting its patent misunderstandings of 

the parties’ agreements. The Common Interest Agreement between the Ferrer Parties and 

Larkin and Lacey (and the other Medalist Parties) is a joint representation agreement that 

provides broader protections than the JDA. It expressly precludes Ferrer from disclosing 

privileged communications to third parties. It applies whether or not the communications 

were also protected by the JDA. 

The government ignores all this, and says it instructed Ferrer only that he “should 

not discuss JDA-protected material.” Grant Decl. Ex. K, at 2. But this indicates the 

government took no precautions to prevent disclosure of information covered by the other, 

broader joint representation agreements. And, here again, the evidence reflects that Ferrer 

has breached the joint representation agreements in cooperation with the government. 

Ferrer and his counsel sent unsolicited letters to courts in numerous civil cases across the 

county misstating those agreements in an effort to interfere with continuing representation 

by DWT and other counsel of the Medalist parties in those cases. (Doc. 235-5, April 24, 

2018 letter from N. Clarence, purporting that Ferrer could withdraw consent for DWT’s 

representation, although he had previously expressly agreed that he could not seek 

disqualification). When Defendants asked the government’s counsel for information 

about whether they had caused or participated in these communications, the government 

refused to respond. The joint representation agreements are privileged in their own right. 

Defendants are entitled to discovery to know if, as it appears, the government has worked 

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with Ferrer to have him misstate the agreements to attempt to prejudice the rights of 

Defendants in other cases.

C. Judge Campbell’s Order Requiring Production of Specific 

Documents Did Not Establish a Subject Matter Waiver.

The government also repeats its claim that Judge Campbell’s order overruling

privilege claims for certain specific documents containing communications of counsel 

with public relations consultants should result in a broad subject matter waiver requiring

disclosure of essentially all privileged communications. Reply at 11 (seeking all 

privileged information about “ad moderation” (i.e., efforts to screen and block improper 

content) or “whether/how to acknowledge the prevalence of prostitution ads on the 

Backpage website” (although the documents ordered to be produced said no such thing). 

Id. Here too the government misstates the law and the circumstances of this case.

In its effort to impose a broad subject matter waiver, the government cites cases in 

which parties purposefully disclosed privileged communications to advance their 

litigation positions, and courts held that, as a matter of fairness, the waivers extended to 

other communications on the same subject. See Reply at 11 (citing Hernandez v. 

Tanninen, 604 F.3d 1095, 1101 (9th Cir. 2010) (where plaintiff provided attorney’s 

affidavit in support of summary judgment, fairness required disclosure of attorney’s other 

communications about same subject, but did not effect a blanket waiver); and United 

States v. Plache, 913 F.2d 1375, 1380 (9th Cir. 1990) (where defendant voluntarily 

testified before grand jury about his communications with counsel—even after being 

cautioned by U.S. attorney—he waived privilege as to same subject matter)).

Cases such as these have nothing to do with the situation here. Neither 

Backpage.com nor Defendants voluntarily disclosed the communications with PR 

consultants in this or any action. They did not use or attempt to use the documents for 

strategic advantage. The communications were withheld from production in response to 

the prior grand jury subpoena, and the specific documents were properly identified on a 

privilege log. The government challenged those privilege claims, asserting that 

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communications with PR consultants could not be protected under the attorney-client 

privilege or work product doctrine. Judge Campbell ruled in favor of the government, 

compelling production of the 154 documents previously withheld. Defendants disagree 

with the ruling, but complied with it in good faith.4

The government offers no authority for the proposition that when a court disagrees 

with good faith privilege claims and orders the production of specific documents that 

causes a broad subject-matter waiver of privileges. Here too the law is the opposite. 

Courts impose “subject matter” waivers only when “[f]airness compels this result 

[because] the disclosure was made in the context of a judicial proceeding and afforded the 

[party] an adversarial gain.” Paul R. Rice, et al., 2 ATTORNEY-CLIENT PRIVILEGE IN THE 

U.S. § 9:85 (Dec. 2017). In other contexts—and, more importantly, in this context—the

rule is that a waiver extends only to the specific communications actually disclosed. Id. 

(citing e.g., In re von Bulow, 828 F.2d 94 (2d Cir. 1987) (holding that attorney’s 

disclosures of information to an author waived privilege only as the specific disclosures 

made)); see also Chevron Corp. v. Pennzoil Co., 974 F.2d 1158, 1162 (9th Cir. 1992) 

(Pennzoil’s disclosure of counsel’s advice about acquiring Chevron stock constituted 

waiver only as to communications actually disclosed, except to the extent Pennzoil 

affirmatively put counsel’s advice at issue). 

Again, Defendants are entitled to discovery in this regard. As noted, despite the 

supposed separation of its “filter team” and “prosecution team,” the government has 

indicated the two groups have already discussed the substance of the privileged 

documents—indeed, the government points to the taint team’s explanation of the

documents it has reviewed as a basis for asserting that the government should be entitled 

to review all privileged documents. See Mot. at 12. 

 

4 Defendants reserve all rights (including appellate rights) regarding the court’s order, as 

the majority rule is that privilege protections extend to counsels’ communications with 

PR consultants, particularly where, as here, the consultants were retained to address legal 

challenges and filled roles for which the company had no in-house expertise.

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D. The Government’s Mischaracterizations of the Facts and the Law 

Prove the Need for Discovery.

Defendants’ cross-motion asked the Court to block any further review by the 

government’s taint team and to allow discovery regarding whether the government has 

accessed privileged or work product information and the government’s communications 

with Ferrer or others about privileged information or the joint representation agreements. 

Opp. at 2-3, 22-24. The cross-motion sought discovery to (1) understand and address 

whatever Ferrer has disclosed or purportedly waived; (2) provide a fair opportunity to 

respond to the “privilege issues” motion; and (3) protect Defendants’ rights to seek relief, 

as appropriate, for improper invasions of privilege rights that have occurred. Id.

The government offered no opposition to Defendants’ cross motion. Its only 

response was a footnote stating that it previously opposed Mr. Lacey’s motion for 

disclosures in connection with the motions to disqualify counsel. See Reply at 16, n.4

(referring to Docs. 206, 266). While Defendants are entitled to discovery to respond to 

the disqualification motions, the cross-motion sought relief for additional and separate 

reasons. Among other things, the cross-motion sought discovery not just to defend against 

the government’s ill-founded motions, but also to seek affirmative relief to address the 

government’s conduct. Because the government offers no opposition on the merits, the 

cross-motion should be granted. PageMasters, Inc. v. Autodesk, Inc., 2009 WL 825810, 

at *10 (D. Ariz. Mar. 30, 2009) (a party’s failure to respond to grounds for a motion is 

treated as “conceding the validity of [the] argument on the merits”). 

Regardless, the government’s assertions underscore the need for discovery and 

amply support granting Defendants’ cross-motion. The government’s positions are 

hopelessly contradictory, except in the sense that the government consistently maintains 

it can decide unilaterally whether privileges have been waived or preserved, based solely 

on its views about communications and dealings it will not disclose. 

For example, the government initially claimed Ferrer had waived only “the 

corporate attorney-client privilege” but not his “individual attorney-client privilege.” 

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Grant Decl. Ex. J, at 1 (USAO May 3, 2018 letter providing Ferrer’s Waiver of AttorneyClient Privilege, signed April 5, 2018 (emphasis in original)). Then, when defense counsel 

asked for more information, the government disclosed Ferrer’s “Proffer/Interview 

Agreement,” in which he agreed to “voluntarily waive[] all claims of attorney-client 

privilege in his personal or official capacity.” Id. Ex. K, at 5 (USAO May 14, 2018 letter, 

attaching Proffer/Interview Agreement, also dated April 5, 2018). The government has 

also said Ferrer signed another agreement concerning his purported privilege waivers, but 

has refused to provide it. Id. Ex. K, at 2. 

Recognizing that the Proffer/Interview Agreement reflects on its face that Ferrer 

waived his personal attorney-client privilege rights, the government has backpedaled and 

said the agreement was just poorly written, contending “it was not meant to apply to 

attorneys and law firms that represented Ferrer in a personal capacity.” (Doc. 216, at 13

(emphasis added)). Then, the government argues that if the agreement did waive Ferrer’s 

personal attorney-client privilege rights—i.e., contradicting the government’s own 

contention that it did not—it meant only that Ferrer would “discuss matters related to these 

firms if asked to do so” and, the government asserts, “this topic ... was never broached 

during Ferrer’s proffer sessions.” Id. (emphasis in original). But, again, the government’s 

position is that Defendants must simply take on faith whatever the government says was 

or was not discussed or disclosed. Notably, the government has provided no evidence, 

affidavit or other proof to support its arguments. 

At the same time, the government’s arguments reflect that it so completely 

misunderstands the roles and relationships between counsel and their actual clients that its 

assertions are meaningless. Again, the government’s assertion that Ferrer did not discuss 

dealings with his “personal counsel” in the April 5 proffer interview illustrates the point. 

Directly contradicting this assertion, the government has supplied (and likely drafted) a 

declaration from Ferrer in which he said that he believed DWT were his “personal 

lawyers.” (Doc. 192-6, ¶¶ 4, 11). While this is patently wrong, Ferrer’s declaration makes 

clear that he did discuss with the government his communications and dealings with DWT. 

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See id. ¶¶ 9, 13-22. So, the government represents that it did not discuss Ferrer’s dealings 

with “personal counsel,” and simultaneously shows that Ferrer discussed his dealings with 

attorneys he claims were “personal counsel.” Defendants are entitled to discovery to have 

the truth, not just the government’s characterizations.5

As discussed above and elsewhere, there is ample reason to believe the 

government has invaded privilege rights. To summarize: 

• The government is precluded from accessing privileged information or work 

product for the period up to April 22, 2015 because the Medalist parties 

retained counsel and hold privileges that Ferrer cannot waive.

• The government is precluded from accessing privileged information or work 

product for the period after April 22, 2015 pursuant to the parties’ joint 

representation agreements, which provided that Ferrer and Backpage.com 

were and are obligated to protect privileges as to third parties and could not 

unilaterally waive them.

• Ferrer therefore can only waive privileges for communications after April 6, 

2018 (when he withdrew from joint representation) and/or as to his actual 

personal counsel, such as Nanci Clarence and her firm.

• The little information the government has provided reflects that it has already

received and discussed privileged information with Ferrer improperly. Ferrer’s 

proffer agreement commits that he would reveal “communications with any 

attorney or law firm that represented Backpage.com, or any related entity.” 

(Doc. 216, at 3). Ferrer’s declaration shows that he has discussed privileged 

information about his dealings with counsel (Doc. 192-6). The letters sent on 

his behalf to courts handling civil cases (see, e.g., Doc. 235-5) reflect that Ferrer 

has communicated with the government about the parties’ privileged 

agreements and mispresented them in attempts to interfere with the Medalist 

parties’ rights and counsel representation.

• The government’s mischaracterizations of the actual attorney-client 

relationships and joint representation undertakings raise substantial concerns 

that it has improperly accessed privileged information. The government’s view 

seemingly is that Ferrer can waive all privileges about any communications 

 

5 This also illustrates the disingenuousness of the government’s positions. When it suits 

the government’s purposes—i.e., in seeking to disqualify counsel—it asserts DWT acted 

as Ferrer’s personal counsel and discloses information about Ferrer’s communications 

with DWT. But when the government seeks to eliminate Defendants’ privilege rights, it 

claims Ferrer has not waived or disclosed anything except as to corporate privileges. 

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related to Backpage.com, when, in fact, under the law and his agreements, he

can waive or disclose little or nothing. 6

The government acknowledges it is obligated to provide at least a significant part

of the information Defendants seek—i.e., reports of the interviews with Ferrer—but 

claims such disclosures should be denied as “premature.” (Doc. 216, at 13-14). The Court 

should not countenance such procedural gamesmanship. The government has brought 

motions to invalidate privileges and disqualify Defendants’ counsel, and has urged that its 

motions be decided now. The government cannot postpone producing information 

relevant to the motions until after they are decided. Defendants have shown the 

government’s actions have broader ramifications about improper transgression of 

privilege rights, and this too is an issue that the government should not be allowed to avoid 

by delay. 

III. CONCLUSION

The government seeks to take every advantage it can to preclude Defendants from 

representation by their longtime counsel, preclude privilege and work product protections, 

and pretend this is all permissible without allowing Defendants opportunity to discover 

the facts to defend and protect their rights. The government is wrong. 

 

6 Similarly, the government offers implausible explanations of its segregation of 

potentially privileged documents for “filter team” review. In warrant applications, the 

government said it would segregate only documents to or from Ms. McDougall, then

claimed its taint team had actually segregated documents identifying four attorneys and 

two law firms. (Doc. 195, at 4). Now, the government asserts vaguely that it used a list 

of “over 265 search terms to determine what documents may need further review.” Reply 

at 16. Yet, the government does not say that it set these documents aside as potentially 

privileged and ones that should not be reviewed. In fact, the government’s assertions 

suggest it flagged these documents for more extensive review. 

The government also tries to explain its segregation of just 10,733 potentially 

privileged documents—as compared to the California AG’s identification of 64,000 

potentially privileged documents—on the asserted premise that “federal authorities didn’t 

take possession of the 64,000 documents that the AG had previously culled.” Reply at 

16. This is a remarkable statement, as the California AG’s Office did not even discuss 

segregating documents reflecting attorney names (to allow defendants to review them) 

until three months after the USAO obtained the documents from the AG. 

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DATED: September 4, 2018 Respectfully submitted,

/s/ Paul J. Cambria, Jr.

LIPSITZ GREEN SCIME CAMBRIA LLP

Attorneys for Defendant Michael Lacey

/s/ Thomas H. Bienert, Jr.

BIENERT, MILLER & KATZMAN PLC

Attorneys for Defendant James Larkin

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CERTIFICATE OF SERVICE

I certify that on this 4th day of September, 2018, I electronically 

transmitted a PDF version of this document to the Clerk of Court, using the 

CM/ECF System, for filing and for transmittal of a Notice of Electronic Filing to 

the following CM/ECF registrants listed below.

s/ Toni Thomas

 Toni Thomas

CM/ECF Registrants: 

Reginald Jones, reginald.jones4@usdoj.gov 

Peter Kozinets, peter.kozinets@usdoj.gov 

Margaret Perlmeter, margaret.perlmeter@usdoj.gov 

Kevin Rapp, kevin.rapp@usdoj.gov 

Andrew Stone, andrew.stone@usdoj.gov 

Paul Cambria, pcambria@lglaw.com 

Tom Bienert, tbienert@bmkattorneys.com 

Bruce Feder, bf@federlawpa.com 

Michael Kimerer, mdk@kimerer.com 

Stephen Weiss, sweiss@karpweiss.com

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