1 CASE NO. CR-18-422-PHX-DJH 

MOVANT CARL FERRER’S MOTION FOR A PROTECTIVE ORDER 

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Jonathan M. Baum (admitted Pro Hac Vice) 

STEPTOE & JOHNSON LLP 

One Market Plaza, Steuart Tower Ste 1070 

San Francisco, CA 94105 

Tel: (415) 365-6700 

Fax: (415) 365-6700 

jbaum@steptoe.com 

Tahir L. Boykins (admitted Pro Hac Vice) 

STEPTOE & JOHNSON LLP 

633 West Fifth Street, Suite 1900 

Los Angeles, CA 90071 

Tel: (213) 439-9437 

Fax: (213) 439-9599 

tboykins@steptoe.com 

Attorneys for Movant 

CARL FERRER 

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

United States of America, 

Plaintiff, 

v. 

Michael Lacey, et al., 

Defendants. 

CASE NO. CR-18-422-PHX-DJH 

MOVANT CARL FERRER’S MOTION 

FOR A PROTECTIVE ORDER 

 

[Filed concurrently with Declaration of 

Jonathan Baum ISO Movant Carl Ferrer’s 

Motion for A Protective Order]

 

Case 2:18-cr-00422-DJH Document 1829-1 Filed 10/04/23 Page 1 of 4
2 CASE NO. CR-18-422-PHX-DJH 

MOVANT CARL FERRER’S MOTION FOR A PROTECTIVE ORDER 

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I. INTRODUCTION 

Carl Ferrer files this motion to assert the attorney-client privilege on his own behalf. 

During the course of cross-examination in this case, defense counsel sought to introduce a 

privileged memorandum sent from Mr. Ferrer to his prior lawyer, James Grant of Davis 

Wright Tremaine LLP, which the defense presumably obtained from Mr. Ferrer’s former 

lawyer, who also represented the defendants.1 While the Court properly excluded this 

exhibit, the defendants recently filed another motion (Dkt. No. 1822), indicating that they 

intend to continue to seek to violate Mr. Ferrer’s attorney-client privilege, his marital 

communication privilege, and potentially other privileges. 

Mr. Ferrer hereby objects to any question or exhibit that intrudes upon privileged 

communications of any kind.2

II. ARGUMENT 

A. Mr. Ferrer Never Waived His Personal Attorney-Client Privilege 

In April 2018, Mr. Ferrer signed a limited waiver of the attorney-client privilege on 

behalf of the companies he formally controlled at that time. This waiver is already on the 

docket in this case, at Dkt. No. 195-3. 

This waiver states that Mr. Ferrer “waive[s] each of the Companies’ attorney-client 

privilege[.]” The waiver, however, expressly states that it does not apply “to any aspect of 

my personal attorney-client relationship with attorneys who have represented me in the 

past[.]” Id. Mr. Grant played many roles during the history of Backpage, but at the time of 

this communication, Mr. Grant served as Mr. Ferrer’s personal counsel in the criminal case 

 

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 The Defendants appear to have obtained this document in spite of Davis Wright Tremaine 

assuring Judge Logan in 2018 that it would maintain Mr. Ferrer’s attorney-client privilege. See

Dkt. No. 338 at 10 (“Moving forward, the Court will rely on the representations of HCM, DWT, 

and their respective counsel that the firms will continue to preserve the confidences of Ferrer as a 

former client, create ethical walls where necessary, refrain from engaging in trial preparation or 

participating as trial counsel, and only participate in the limited capacity set forth in the 

pleadings, without an order from the Court.”). 

2

 To the extent necessary, Mr. Ferrer also authorizes the Government to assert the attorney-client 

privilege on his behalf. See United States v. Martoma, 962 F.Supp.2d 602, 605 (S.D.N.Y. Aug. 

23, 2013) (Government has standing to assert the attorney-client privilege where a witness 

“authorize[s] the Government to assert those rights on his behalf”). 

Case 2:18-cr-00422-DJH Document 1829-1 Filed 10/04/23 Page 2 of 4
3 CASE NO. CR-18-422-PHX-DJH 

MOVANT CARL FERRER’S MOTION FOR A PROTECTIVE ORDER 

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filed against him in Sacramento County, California. See Exhibit A (Sacramento Superior 

Court Criminal Pleading title page where Grant is identified as “Counsel for Defendants 

Carl Ferrer, Michael Lacey and James Larkin.”). The document, therefore, is protected by 

the attorney-client privilege.3 

B. Defendants’ Sixth Amendment Rights Do Not Trump Mr. Ferrer’s 

Attorney-Client Privilege 

The attorney-client privilege is “one of the oldest recognized privileges for 

confidential communications,” Swidler & Berlin v. United States, 524 U.S. 399, 403 

(1998). The Ninth Circuit has held that a defendant's right to cross-examine an adverse 

witness is not unlimited. Hayes v. Ayers, 632 F.3d 500, 518 (9th Cir. 2011). “[T]he 

Confrontation Clause guarantees an opportunity for effective cross-examination, not crossexamination that is effective in whatever way, and to whatever extent, the defense might 

wish.” Id. (emphasis in original); (quoting Delaware v. Van Arsdall, 475 U.S. 673, 679 

(1986).) Here, permitting the defense to violate Mr. Ferrer’s attorney-client privilege is not 

justified. 

III. Conclusion 

Accordingly, Mr. Ferrer requests that the Court issue a protective order prohibiting 

Defendants from violating his attorney-client privilege or other applicable privileges. 

Dated: October 3, 2023 STEPTOE & JOHNSON LLP

 

 By: /s/ Jonathan Baum 

Jonathan Baum (admitted Pro Hac Vice) 

Tahir L. Boykins (admitted Pro Hac Vice) 

Attorneys for Movant Carl Ferrer 

 

3

 The Defendants in this case in 2018 actually sought to block Mr. Ferrer from executing even 

this limited waiver. Judge Logan agreed with their request at that time, holding that that “the 

materials shared between the parties to the JDA are to be protected from disclosure unless the 

disclosing party first obtains the written consent of all parties who may be entitled to a claim of 

privilege over the materials.” (Dkt. No. 345, at 4.) Defendants cannot now make the opposite 

argument. 

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4 CASE NO. CR-18-422-PHX-DJH 

MOVANT CARL FERRER’S MOTION FOR A PROTECTIVE ORDER 

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CERTIFICATE OF SERVICE

I hereby certify that on October 3, 2023, I electronically transmitted the attached 

document to the Clerk’s Office using the CM/ECF System for filing and transmittal of a 

Notice of Electronic Filing to the CM/ECF registrants who have entered their appearance 

as counsel of record. 

 /s/ Debbie DeRivero 

 Debbie DeRivero 

Case 2:18-cr-00422-DJH Document 1829-1 Filed 10/04/23 Page 4 of 4