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IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA

 

Before the Court is the Government’s Motion for Access to the Joint Representation 

and Joint Defense Agreements Previously Submitted by Defendants Michael Lacey and 

James Larkin for In Camera Review (the “Motion”). (Doc. 354) The Motion was fully 

briefed on January 4, 2019. For the reasons set forth below, the Motion is granted in part 

and denied in part. 

I. Background

 On October 12, 2018, the Court issued an order denying the Government’s motion 

to disqualify (“Motion to Disqualify”) the law firm of Henze Cook Murphy from 

representing Defendant Michael Lacey and the law firm of Davis Wright Tremaine from 

representing Lacey and Defendant James Larkin. (Doc. 338) On October 18, 2018, the 

Court issued an order denying the Government’s motion to resolve attorney-client privilege 

issues. (Doc. 345) In each of these orders, the Court relied on two documents: (i) a 

Common Interest and Litigation Management Agreement (the “JRA”), or joint 

representation agreement; and (ii) a joint defense agreement (the “JDA”). The JRA and 

United States of America, 

 

Plaintiff, 

vs. 

Michael Lacey, et al., 

Defendants. 

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No. CR-18-00422-PHX-SPL 

ORDER 

 

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JDA (together, the “Defense Agreements”) were submitted to the Court for in camera 

review as exhibits to the Defendants’ response to the Motion to Disqualify. (Doc. 180 at 

12) The Government did not object to the Court’s in camera review of the Defense 

Agreements at any point prior to the Court’s rulings on the Government’s motions. On 

October 26, 2018, the Government filed the Motion seeking access to the Defense 

Agreements and a Joint Engagement Letter dated December 12, 2016 (the “Engagement 

Letter”), all of which were exhibits submitted with the Defendants’ response to the Motion 

to Disqualify. 

II. Discussion

 The Government seeks access to the Defense Agreements on the basis that (i) the 

Defense Agreements are not protected by attorney-client or attorney work product 

privilege, and (ii) the Court’s review of the Defense Agreements played a central role in 

denying two of the Government’s motions. (Doc. 354 at 2–8) The Government also argues 

that any privilege that may have attached to the Defense Agreements has been waived 

through various arguments made by the Defendants in this case. (Doc. 354 at 9–10) In 

response, the Defendants argue that (i) the Government has waived its right to seek access 

to the Defense Agreements because the request is untimely; (ii) the Motion constitutes an 

improper attempt to relitigate the Government’s earlier motions; and (iii) the Defense 

Agreements are protected by the attorney-client privilege. (Doc. 408) 

 The Government has not directed the Court to any controlling or persuasive 

authority that excuses its delayed request for access to the Defense Agreements. The 

Government did not object to the Defendants’ submission of the Defense Agreements for 

in camera review; therefore, the Court is confident in finding that the Government has now 

waived that objection. United States v. Nunez, 223 F.3d 956, 958 (9th Cir. 2000) (stating 

that as a general matter, the government may waive certain defenses by not raising them in 

a timely manner). There is very limited precedent discussing the proper timing of 

objections to evidence submitted to a court for in camera review in the context of a criminal 

case. However, there is precedent demonstrating how other courts have handled challenges 

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to documents submitted for in camera review. United States v. Whitworth, 856 F.2d 1268, 

1276–77 (9th Cir. 1988) (stating that defendant’s failure to object to in camera review 

material was not reversible error); Peals v. Terre Haute Police Dep’t, 535 F.3d 621, 631 

(7th Cir. 2008) (stating that a defendant’s failure to object to a court’s in camera review of 

certain personnel files in a criminal case meant that the defendant was not prejudiced for 

not having access to the files). In each of these instances, the challenges to the in camera 

review occurred before the respective courts reviewed the evidence at issue, and certainly 

not four months after the documents were submitted, reviewed, and then incorporated into 

a ruling. The Court finds that the Government cannot seek access to the Defense 

Agreements on the basis of fairness when it did not challenge the submission of the Defense 

Agreements for in camera review during the course of active briefing. The Government’s 

argument that the Defense Agreements are “highly relevant” only accentuates the fact that 

the Government should have brought its objection to the Court’s in camera review prior to 

the Court’s ruling. 

 Furthermore, the Court finds that the Defendants have demonstrated that the 

Defense Agreements are protected under the attorney-client privilege. The proper 

procedure for asserting the attorney-client privilege as to particular documents is to submit 

them in camera for the Court’s inspection and provide an explanation of how the 

information fits within the privilege. In re Grand Jury Witness, 695 F.2d 359, 362 (9th 

Cir. 1982). It is well settled that the identity of the client, the amount of the fee, the 

identification of payment by case file name, and the general purpose of the work performed 

are usually not protected from disclosure by the attorney-client privilege. Clarke v. Am. 

Commerce Nat. Bank, 974 F.2d 127, 129 (9th Cir. 1992). However, the client’s ultimate 

motive for litigation, motive for retention of an attorney, litigation strategy, the specific 

nature of the services provided, and the confidential communications between attorney and 

client made in order to obtain legal assistance are privileged. Grand Jury Witness, 695 F.2d 

at 362; Clarke, 974 F.2d at 129. The burden of establishing that the attorney-client 

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privilege applies to the documents in question rests with the party asserting the privilege. 

Clarke, 974 F.2d at 129. 

 The Defendants submitted the Defense Agreements as exhibits to their pleading in 

response to the Government’s Motion to Disqualify. (Doc. 180) In the pleading, the 

Defendants asserted that the Defense Agreements “recognized that the parties shared 

interests in defending claims related to Backpage.com . . . [and] spelled out the parties’ 

undertakings to retain joint counsel, share confidential information, and waive potential 

conflicts of interest.” (Doc. 180 at 13) Furthermore, the Defense Agreements “requested 

that [Davis Wright Tremaine] act as joint counsel . . . in connection with the California 

criminal case or other proceedings.”(Doc. 180 at 7–8; Doc. 235 at 13) The Court finds that 

the information described in the Defendants’ pleadings demonstrates that the Defense 

Agreements go far beyond simply identifying parties, listing information related to fees 

and payments, and discussing the attorney services to be provided generally. It is clear on 

the face of the pleadings that the Defense Agreements themselves constituted a trial 

strategy by contracting for a conglomerate of parties to band together for a common defense 

in the California litigation and future potential litigations. Per the pleadings, the Defense 

Agreements discussed the parties’ common interests in defending the California litigation 

and desire to coordinate a joint defense and share confidential information. (Doc. 235 at 

13) Furthermore, the Court’s in camera review of the Defense Agreements finds that there 

is information present in the Defense Agreements that rises to the level of defense strategy. 

Therefore, the Court finds that the Defendants have met their burden of demonstrating that 

the Defense Agreements were privileged. Accordingly, the Court finds that the Defense 

Agreements are protected by the attorney-client privilege, and the Government’s Motion 

will be denied in part as it pertains to the JRA and JDA. 

 The stark difference between the Engagement Letter and the Defense Agreements 

helps demonstrate the Court’s findings more thoroughly. The Court finds that the 

information contained in the Engagement Letter is exactly the type of bare bones recitation 

of parties, fees, and general purpose of representation that is not protected by the attorneyCase 2:18-cr-00422-DJH Document 441 Filed 01/17/19 Page 4 of 6
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client privilege. Clarke, 974 F.2d at 129 (stating that the identity of the client, the amount 

of the fee, the identification of payment by case file name, and the general purpose of the 

work performed are usually not protected from disclosure by the attorney-client privilege.) 

The Engagement Letter mirrors a version of the most common initial communication 

between lawyer and client, and the Court does not find that the information contained in 

the Engagement Letter has any bearing on legal planning, strategy or motive for retaining 

counsel. Accordingly, the Court will grant the Government’s Motion as it applies to the 

Joint Engagement Letter dated December 12, 2016, that was filed as Exhibit A to the 

Declaration of James C. Grant in Support of Opposition to United States’ Motion to 

Disqualify Counsel and submitted to the Court for in camera review. 

 Finally, the Government argues that any privilege protecting the Defense 

Agreements has been waived. In determining whether attorney-client privilege has been 

waived, a court considers: (i) whether the party is asserting the privilege as the result of 

some affirmative act; (ii) whether through this affirmative act, the asserting party puts the 

privileged information at issue; and (iii) the court evaluates whether allowing the privilege 

would deny the opposing party access to information vital to its defense. Home Indemnity 

Co. v. Lane Powell Moss and Miller, 43 F.3d 1322, 1326 (9th Cir. 1995); United States v. 

Amlani, 169 F.3d 1189, 1195 (9th Cir. 1999). The Court finds that the Defendants have 

not invoked an implicit waiver of the attorney-client privilege based on this standard. First, 

the Court finds that responding to the Government’s Motion to Disqualify constitutes an 

affirmative act. However, the Court finds that the Defendants did not put the entirety of 

the privileged information in the Defense Agreements at issue. As discussed above, the 

Defense Agreements address several aspects of the Defendants’ agreement to move 

forward in future litigation as one group. The waivers at issue in the Motion to Disqualify 

and the Motion to Resolve Attorney-Client Privilege Issues are only one part of the overall 

agreement, and the Defendants have not summarized other vital parts of the Defense 

Agreements in any past pleadings or put those sections at issue in this case. Finally, the 

Court finds that denying the Government access to the Defense Agreements does not deny 

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it access to any information that is vital to the prosecution of this case. The contents of the 

Defense Agreements are not essential pieces of evidence necessary to any element of any 

offense that the Government has the burden of proving in this criminal case. 

Accordingly, 

 IT IS ORDERED: 

1. That Government’s Motion for Access to the Joint Representation and Joint 

Defense Agreements Previously Submitted by Defendants Michael Lacey and James 

Larkin for In Camera Review (Doc. 354) is granted in part as it applies to the 

Engagement Letter. Counsel for the Defendants shall provide a copy of the Engagement 

Letter to counsel for the Government within 21 days of this Order. 

2. That Government’s Motion for Access to the Joint Representation and Joint 

Defense Agreements Previously Submitted by Defendants Michael Lacey and James 

Larkin for In Camera Review (Doc. 354) is denied in part as it applies to the JRA and 

JDA.

 Dated this 17th day of January, 2019. 

Honorable Steven P. Logan 

United States District Judge 

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