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ELIZABETH A. STRANGE 

First Assistant United States Attorney 

District of Arizona 

KEVIN M. RAPP (Ariz. Bar No. 14249, kevin.rapp@usdoj.gov) MARGARET PERLMETER (Ariz. Bar No. 024805, margaret.perlmeter@usdoj.gov) PETER S. KOZINETS (Ariz. Bar No. 019856, peter.kozinets@usdoj.gov) ANDREW C. STONE (Ariz. Bar No. 026543, andrew.stone@usdoj.gov) JOHN J. KUCERA (Cal. Bar No. 274184, john.kucera@usdoj.gov) Assistant U.S. Attorneys 

40 N. Central Avenue, Suite 1800 

Phoenix, Arizona 85004-4408 

Telephone (602) 514-7500 

BRIAN BENCZKOWSKI 

Assistant Attorney General Criminal Division, U.S. Department of Justice 

REGINALD E. JONES (Miss. Bar No. 102806, reginald.jones4@usdoj.gov) Senior Trial Attorney, U.S. Department of Justice Child Exploitation and Obscenity Section 

950 Pennsylvania Ave N.W., Room 2116 

Washington, D.C. 20530 

Telephone (202) 616-2807 Attorneys for Plaintiff 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

United States of America, 

 Plaintiff, 

 v. 

Michael Lacey, et al., 

 Defendants. 

CR-18-422-PHX-SPL (BSB) UNITED STATES’ MOTION FOR 

CLARIFICATION RE ORDER TO 

RESOLVE ATTORNEY-CLIENT 

PRIVILEGE ISSUES [Doc. 345] 

The government seeks clarification with respect to the Court’s Order (Doc. 345), 

but only as it relates to the government’s filter team review. On October 18, 2018, the 

Court denied the government’s motion to resolve attorney-client privilege issues and 

granted in part and denied in part Defendants’ cross-motion to obtain discovery and address 

privilege issues. (Doc. 345.) Defendants’ cross-motion requested the Court issue an order 

with respect to the following six categories: 

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1. Deny the government’s motion and reject its assertions attempting to create 

a blanket waiver of privilege in this action; 

2. Order that the government’s review of potentially privileged documents 

immediately cease; 

3. Direct the government to run a search of all documents in its possession and 

segregate all documents that contain any attorney or law firm names (based 

on lists of such names provided previously); 

4. Require the government to provide disclosures of all communications with 

Ferrer, his counsel, or others about representation of or communications with 

counsel, the parties’ agreements regarding joint representation or defense, 

and/or any efforts to influence or affect counsel’s representations of Messrs. 

Lacey and Larkin or any of the Medalist Parties; 

5. Require the government to provide complete information about processes 

and any review of potentially privileged documents or information that has 

occurred to date; and 

6. After the requisite disclosures, permit the parties an opportunity to bring 

further motions, as appropriate, to address protection of attorney-client 

privileges and work product protections or to seek remedies for violations. 

(Doc. 235 at 29-30.) 

 The Court granted Defendants’ cross-motion—in part—in order to “prohibit the 

Government from accessing the privileged email communications at issue.” (Doc. 345 at 

8.) The Court then found that Defendants’ request for discovery was neither necessary nor 

helpful. (Id.) And that any order of discovery would “unnecessarily distract” from the trial 

process and cause a waste of resources. (Id.) 

 The Court’s Order makes clear that Defendants’ first request in their cross-motion 

(Doc. 235) was granted. In addition, it is clear that requests four through six were denied. 

(Doc. 345 at 8.) The Order, however, is silent as to requests number two and three that 

relate to the government’s filter team review. The Court likely remained silent on these 

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requests, because the government has averred both that (a) it temporarily stopped 

conducting a filter team review after the prosecution team received a letter from Defendants 

in May, which raised concerns about the process (Doc. 195 at 4), and (b) the government 

has already run a search with over 265 terms that relate to attorney representation and 

segregated any potentially privileged documents. (Doc. 269 at 16, 269-8.) 

Based on the Court’s Order, the government is prepared to finish its filter review of 

all the potentially privileged materials within its possession. It will continue the process 

that two different magistrate judges have already approved. (Doc. 195-1, 195-2.) Before 

commencing with its review, however, the government is seeking this clarification to 

inform both the Court and Defendants of its plan moving forward. Given the nature of this 

case, the government wants to ensure this Court has a complete understanding about the 

government’s intentions before proceeding. As discussed previously, a filter review is the 

most efficient path forward. (See Doc. 269 at 15 (citing United States v. Loughner, 782 F. 

Supp. 2d 829, 833 (D. Ariz. 2011) (“The Court approves the Government’s use of a filter 

team to screen BOP’s records for possible privilege issues.”); United States v. Triumph 

Capital Group, Inc., 211 F.R.D. 31, 43 (D. Conn. 2002) (“The use of a taint team is a 

proper, fair and acceptable method of protecting privileged communications when a search 

involves property of an attorney.”)) Accordingly, the government seeks clarification on 

re-initiating its filter review to ensure the discovery process continues to move forward in 

an efficient manner. For the foregoing reasons, the government requests the Court enter 

the attached proposed order confirming that the filter team may resume and complete its 

privilege review. 

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Respectfully submitted this 29th day of October, 2018. 

 ELIZABETH A. STRANGE 

 First Assistant United States Attorney 

 District of Arizona 

 

 s/Andrew C. Stone

 KEVIN M. RAPP 

 MARGARET PERLMETER 

 PETER S. KOZINETS 

 ANDREW C. STONE 

JOHN J. KUCERA 

 Assistant U.S. Attorneys 

 BRIAN BENCZKOWSKI 

 Assistant Attorney General Criminal Division, U.S. Department of Justice 

 

 REGINALD E. JONES 

 Senior Trial Attorney 

 U.S. Department of Justice, Criminal Division 

 Child Exploitation and Obscenity Section 

Certificate of Service 

I hereby certify that on this date, 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 following CM/ECF registrants: Anne Chapman, Erin McCampbell, Gregory 

Zamora, James Grant, Lee Stein, Paul Cambria, Robert Corn-Revere, Ronald London, 

Janey Henze Cook, John Littrell, Kenneth Miller, Thomas Bienart, Jr., Bruce Feder, 

Michael Kimerer, Rhonda Neff, KC Maxwell, David Wakukawa, Michael Piccarreta, 

Stephen Weiss, Gopi Panchapakesan, Ariel Neuman, Gary Lincenberg, Anthony Bisconti, 

Whitney Bernstein, Seetha Ramachandran. 

s/Gaynell Smith 

U.S. Attorney’s Office 

Case 2:18-cr-00422-DJH Document 355 Filed 10/29/18 Page 4 of 4