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3714083.1

DEFENDANTS’ CITATION OF SUPPLEMENTAL AUTHORITIES IN OPPOSITION TO GOVERNMENT’S 

MOTION FOR IN CAMERA REVIEW OF CRIME-FRAUD MATERIALS (DOC. NO. 1074)

Thomas H. Bienert, Jr. (admitted pro hac vice) tbienert@bienertkatzman.com

Whitney Z. Bernstein (admitted pro hac vice) wbernstein@bienertkatzman.com

BIENERT KATZMAN, PC

903 Calle Amanecer, Suite 350

San Clemente, CA 92673

Telephone: (949) 369-3700

Facsimile: (949) 369-3701

Attorneys for Defendant James Larkin

Gary S. Lincenberg (admitted pro hac vice) glincenberg@birdmarella.com

Ariel A. Neuman (admitted pro hac vice) aneuman@birdmarella.com

Gopi K. Panchapakesan (admitted pro hac vice) gpanchapakesan@birdmarella.com

BIRD, MARELLA, BOXER, WOLPERT, NESSIM,

DROOKS, LINCENBERG & RHOW, P.C.

1875 Century Park East, 23rd Floor

Los Angeles, California 90067-2561

Telephone: (310) 201-2100

Facsimile: (310) 201-2110

Attorneys for Defendant John Brunst

[Additional counsel listed on next page]

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

United States of America,

Plaintiff,

vs.

Michael Lacey, et al.,

Defendants.

CASE NO. 2:18-cr-00422-004-PHX-SMB

DEFENDANTS’ CITATION OF 

SUPPLEMENTAL AUTHORITIES IN 

OPPOSITION TO GOVERNMENT’S 

MOTION FOR IN CAMERA REVIEW 

OF CRIME-FRAUD MATERIALS 

(DOC. NO. 1074) 

(Evidentiary Hearing Requested)

Assigned to Hon. Susan M. Brnovich

Courtroom 506

Trial Date: August 23, 2021

Case 2:18-cr-00422-DJH Document 1151 Filed 04/20/21 Page 1 of 8
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3714083.1 2

DEFENDANTS’ CITATION OF SUPPLEMENTAL AUTHORITIES IN OPPOSITION TO GOVERNMENT’S 

MOTION FOR IN CAMERA REVIEW OF CRIME-FRAUD MATERIALS (DOC. NO. 1074)

Paul J. Cambria, Jr. (admitted pro hac vice) pcambria@lglaw.com

Erin McCampbell (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

Attorneys for Defendant Michael Lacey

Bruce Feder (AZ Bar No. 004832)

 bf@federlawpa.com

FEDER LAW OFFICE, P.A.

2930 E. Camelback Road, Suite 160

Phoenix, Arizona 85016

Telephone: (602) 257-0135 

Attorney for Defendant Scott Spear

David Eisenberg (AZ Bar No. 017218)

 david@deisenbergplc.com

DAVID EISENBERG PLC

3550 N. Central Ave., Suite 1155

Phoenix, Arizona 85012

Telephone: (602) 237-5076

Facsimile: (602) 314-6273

Attorney for Defendant Andrew Padilla

Joy Malby Bertrand (AZ Bar No. 024181)

 joy.bertrand@gmail.com

JOY BERTRAND ESQ LLC

P.O. Box 2734

Scottsdale, Arizona 85252

Telephone: (602)374-5321

Facsimile: (480)361-4694

Attorney for Defendant Joye Vaught

Case 2:18-cr-00422-DJH Document 1151 Filed 04/20/21 Page 2 of 8
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3714083.1 3

DEFENDANTS’ CITATION OF SUPPLEMENTAL AUTHORITIES IN OPPOSITION TO GOVERNMENT’S 

MOTION FOR IN CAMERA REVIEW OF CRIME-FRAUD MATERIALS (DOC. NO. 1074)

Defendants submit to the Court the following pertinent authorities that have come to 

their attention since they filed their response to the government’s crime-fraud motion. The 

decisions address whether a court may review privileged documents/communications 

in camera in the absence of a threshold evidentiary showing, made with non-privileged 

documents/communications, that the specific communications for which review is sought 

were made in furtherance of a crime or fraud. 

1. In re BankAmerica Corp. Sec. Litig., 270 F.3d 639, 644 (8th Cir. 2001) (reversing 

district court which, after threshold showing of fraud, erroneously assumed all 

contemporaneous attorney-client communications “‘could be construed’ as in further of the 

alleged fraud” and directing the district on remand “to determine, separately for each document, 

whether the [movant ] made the threshold showing required in Zolin—‘a factual basis 

adequate to support a good faith belief by a reasonable person’ that the Bank was engaged in 

intentional fraud and communicated with counsel in furtherance of the fraud” after which the district 

court, in its discretion, could “review in camera any documents as to which the requisite 

threshold showing has been made to determine whether the crime-fraud exception applies” 

(emphasis added)):

Prior to Zolin, it was settled in this circuit that a party seeking discovery of 

privileged communications based upon the crime-fraud exception must make 

a threshold showing “that the legal advice was obtained in furtherance of the fraudulent activity 

and was closely related to it.” A moving party does not satisfy this threshold burden 

merely by alleging that a fraud occurred and asserting that disclosure of any 

privileged communications may help prove the fraud. There must be a specific 

showing that a particular document or communication was made in furtherance of 

the client’s alleged crime or fraud. 

Id. at 642 (emphasis added; internal citations omitted).

2. Protege Biomedical, LLC v. Z-Medica, LLC, 2020 WL 3642347, at *2 (D. Minn. 

July 6, 2020) (affirming magistrate judge’s order sanctioning party for filing a crime-fraud 

motion and refusing to review privileged documents in camera since the movant “failed to 

identify any evidence” “showing that any of the [privileged] communications bear any 

relationship to . . . crime or fraud”):

The party asserting that the crime-fraud exception applies to otherwise 

Case 2:18-cr-00422-DJH Document 1151 Filed 04/20/21 Page 3 of 8
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3714083.1 4

DEFENDANTS’ CITATION OF SUPPLEMENTAL AUTHORITIES IN OPPOSITION TO GOVERNMENT’S 

MOTION FOR IN CAMERA REVIEW OF CRIME-FRAUD MATERIALS (DOC. NO. 1074)

privileged communication must “make a threshold showing ‘that the legal advice 

was obtained in furtherance of the fraudulent activity and was closely related to it.’ If 

a party makes such a threshold showing, the Court may then exercise its 

discretion and conduct an in camera review of any documents in which the 

threshold showing has been specifically made. Then the moving party ‘must 

make the ultimate showing that the crime-fraud exception actually applies and 

that the privilege should be overcome.’

“Requiring a threshold showing of facts supporting the crime-fraud exception 

followed by in camera review of the privileged materials helps ensure that 

legitimate communications by corporations seeking legal advice . . . are not 

deterred by the risk of compelled disclosure.”

Id. (emphasis added; internal citations omitted).

3. Tracy v. Telemetrix, Inc., 2015 WL 7081901, at *10 (D. Neb. Nov. 13, 2015) 

(denying request for in camera review of documents under crime-fraud exception when movant 

failed to make a prima facie showing that specific communications or documents were made in 

furtherance of a crime or fraud):

Before any documents are either produced or reviewed in camera, the party 

seeking disclosure must make “a threshold showing ‘of a factual basis adequate 

to support a good faith belief by a reasonable person’ that the crime-fraud 

exception applies.” A threshold-showing requires “that the legal advice was 

obtained in furtherance of the fraudulent activity and was closely related to it.” 

“There must be a specific showing that a particular document or communication was 

made in furtherance of the client’s alleged crime or fraud.” 

Id. (emphasis added; internal citations omitted).

4. In re 650 Fifth Ave., 2013 WL 3863866, at *1 (S.D.N.Y. July 25, 2013) (rejecting 

government’s argument that a temporal connection between legal advice and the commission 

of a crime or fraud was sufficient to establish that actions were in furtherance of criminal or 

fraudulent conduct, and refusing in camera review, because “[e]ven assuming that the 

Government submits evidence that a crime or fraud has been committed, the Government 

fails to demonstrate that any particular communication at issue here was in furtherance of the crime(s) 

or fraud(s)” (emphasis added)):

The Government asserts that . . . [because] all Assa activities were in 

furtherance of a crime or fraud, all advice by counsel for Assa and any Assa- related advice by counsel for Alavi constitute, ipso facto, communications made 

“in furtherance of” those schemes. 

The Court disagrees. While the Government may have deeply held convictions 

as to the strength of its claims, the blanket assertion that every communication 

Case 2:18-cr-00422-DJH Document 1151 Filed 04/20/21 Page 4 of 8
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3714083.1 5

DEFENDANTS’ CITATION OF SUPPLEMENTAL AUTHORITIES IN OPPOSITION TO GOVERNMENT’S 

MOTION FOR IN CAMERA REVIEW OF CRIME-FRAUD MATERIALS (DOC. NO. 1074)

was “in furtherance of” a crime or fraud does not make it so. Rather, for the 

crime-fraud exception to apply, the Government must provide particularized 

evidence that each challenged communication was made in furtherance of the crime 

or fraud; the fact that the communication may contain evidence that would help 

to prove the Government’s case that a fraud or crime was committed is 

insufficient . . . . 

Nor does the Government satisfy the lesser burden necessary for the Court to 

order in camera review. For such review, the Court must find that the 

Government makes a “showing of a factual basis adequate to support a good 

faith belief by a reasonable person . . . that in camera review of the materials may 

reveal evidence to establish the claim that the crime-fraud exception applies.” 

As stated above, the annotations and highlights to the Alavi and Assa privilege 

logs merely assume the ultimate question and do not independently establish a 

good faith belief that the documents were created “in furtherance of” a crime 

or fraud. 

Id. at *1-2 (emphasis in original; internal citations omitted).

5. Fair Isaac Corp. v. Experian Info. Sols., Inc., 2009 WL 10677479 (D. Minn. Mar. 23, 

2009) (denying motion to compel in camera review based on the crime-fraud exception, where 

movant failed to present evidence to meet the second prong of the threshold showing 

required for in camera review—communications with counsel in furtherance of illegal 

activities):

[E]ven if Fair Isaac had made the appropriate threshold showing for one 

document—i.e. had presented “a factual basis adequate to support a good faith 

belief by a reasonable person” that the bureaus were engaged in activities 

violative of antitrust laws or the spoliation of evidence, and had communicated with 

counsel in furtherance of these illegal activities, this showing certainly would not meet 

the threshold showing mandated for the in camera review for the scores of 

documents listed on defendants’ privilege logs generated over a two-year [sic] to 

determine if the crime-fraud exception applies.

In sum, Fair Isaac’s failure to make the threshold showing required by Zolin for 

each document it is asking this Court to perform an in camera review, [sic] is fatal to 

its motion to compel. As the Supreme Court observed in Zolin, “[t]here is no 

reason to permit opponents of the privilege to engage in groundless fishing 

expeditions, with the district courts as their unwitting (and perhaps unwilling) 

agents.” Unfortunately, Fair Isaac’s request is tantamount to a fishing 

expedition of extraordinary scope and size. On this basis alone, this Court 

denies Fair Isaac’s motion for an in camera review.

Second, even if Fair Isaac had performed the required document-by-document 

analysis, and this Court agreed that Fair Isaac had made the requisite showing to 

establish that the bureaus had engaged in illegal activities during the time period 

that Fair Isaac was seeking the privileged documents. Fair Isaac did not present evidence (as 

opposed to argument) to support the second prong of the threshold showing—that Experian 

and Trans Union had communicated with counsel in furtherance of the alleged illegal 

activities. Fair Isaac argued “that there is every reason to believe that documents 

Case 2:18-cr-00422-DJH Document 1151 Filed 04/20/21 Page 5 of 8
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3714083.1 6

DEFENDANTS’ CITATION OF SUPPLEMENTAL AUTHORITIES IN OPPOSITION TO GOVERNMENT’S 

MOTION FOR IN CAMERA REVIEW OF CRIME-FRAUD MATERIALS (DOC. NO. 1074)

the bureaus are withholding will likely show that the bureaus’ communications 

with counsel furthered the bureaus’ illicit agreements and spoliation . . . . Reduced to its essence, Fair Isaac's argument is this: Because it has presented 

evidence of violations of antitrust laws and spoliation of evidence, and because 

the bureaus’ attorneys were intimately involved in the project throughout this 

period, then the attorneys must have been involved in communications in 

furtherance of illegal activity. However, mere allegations or suspicion are 

insufficient to invoke the crime-fraud exception. Further, as the moving party, 

Fair Isaac cannot merely claim that illegal activities have occurred and that 

disclosure of any privileged communications surrounding the time period of 

these activities may help prove that the conduct is indeed illegal. “There must 

be a specific showing that a particular document or communication was made in furtherance of 

the client’s alleged crime or fraud.” . . .

For all these reasons, this Court denies Fair Isaac’s motion for an in camera 

inspection of documents . . . .

Id. at *11-13 (emphasis added; internal citations omitted).

6. In re In-Store Advert. Sec. Litig., 163 F.R.D. 452 (S.D.N.Y. 1995) (rejecting request 

for in camera review where crime-fraud movant failed to present evidence that communications 

with attorneys were in furtherance of a fraud):

[T]he crime[-]fraud exception cannot be successfully invoked merely upon 

showing that the client communicated with counsel while the client was 

engaged in criminal or fraudulent activity.” The party seeking disclosure must 

show not simply probable cause to believe that fraud has been committed, but 

that there is probable cause to believe that the communication between attorney 

and client or the work product produced by the attorney was in furtherance of the 

fraud.

Plaintiffs here have failed to meet this burden. Plaintiffs point only to evidence 

of In–Store’s fraud, and “maintain that defendants had actual knowledge of In– Store’s accounting fraud.... [and therefore] [d]efendants’ participation in that 

‘ongoing fraud’ would vitiate [any] privilege.” Plaintiffs have not alleged facts 

sufficient to invoke the crime-fraud exception because they have not alleged 

that any communications or work product were in furtherance of the fraud, they 

have only alleged that In–Store committed fraud.

Plaintiffs and defendants argue that the court should at least conduct an 

in camera review of the disputed documents to determine whether they are 

properly discoverable. “Such review is not, however, to be routinely 

undertaken . . . as a substitute for a party’s submission of an adequate record” in 

support or in opposition to privilege claims . . . . 

[P]laintiffs have produced no evidence that communications were made or 

work product produced in furtherance of an ongoing or future fraud; they have 

only produced evidence of a fraud by In–Store. This evidence is insufficient to 

support a reasonable belief that in camera review may yield evidence of 

communications to attorneys in furtherance of the fraud or work product 

produced by attorneys in furtherance of the fraud. Because plaintiffs have not 

met the Zolin test, the Court finds that in camera review is not appropriate.

Case 2:18-cr-00422-DJH Document 1151 Filed 04/20/21 Page 6 of 8
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3714083.1 7

DEFENDANTS’ CITATION OF SUPPLEMENTAL AUTHORITIES IN OPPOSITION TO GOVERNMENT’S 

MOTION FOR IN CAMERA REVIEW OF CRIME-FRAUD MATERIALS (DOC. NO. 1074)

Id. at 459 (emphasis in original; internal citations omitted).

Pursuant to the District’s Electronic Case Filing Administrative Policies and Procedures Manual 

(October 2020) § II (C) (3), Gary S. Lincenberg hereby attests that all other signatories listed, and on whose 

behalf this filing is submitted, concur in the filing’s content and have authorized its filing.

DATED: April 20, 2021 Respectfully submitted,

Thomas H. Bienert Jr.

Whitney Z. Bernstein

Bienert | Katzman PC

By: /s/ Thomas H. Bienert, Jr.

Thomas H. Bienert Jr.

Attorneys for Defendant James Larkin

DATED: April 20, 2021 Gary S. Lincenberg

Ariel A. Neuman

Gopi K. Panchapakesan

Bird, Marella, Boxer, Wolpert, Nessim,

Drooks, Lincenberg & Rhow, P.C.

By: /s/ Gary S. Lincenberg

Gary S. Lincenberg

Attorneys for Defendant John Brunst

DATED: April 20, 2021 Paul J. Cambria

Erin McCampbell

Lipsitz Green Scime Cambria LLP

By: /s/ Paul J. Cambria

Paul J. Cambria

Attorneys for Defendant Michael Lacey

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3714083.1 8

DEFENDANTS’ CITATION OF SUPPLEMENTAL AUTHORITIES IN OPPOSITION TO GOVERNMENT’S 

MOTION FOR IN CAMERA REVIEW OF CRIME-FRAUD MATERIALS (DOC. NO. 1074)

DATED: April 20, 2021 Feder Law Office, P.A.

By: /s/ Bruce S. Feder

Bruce S. Feder

Attorney for Defendant Scott Spear

DATED: April 20, 2021 The Law Office of David Eisenberg, PLC

By: /s/ David Eisenberg

David Eisenberg

Attorney for Defendant Andrew Padilla

DATED: April 20, 2021 Joy Bertrand Esq. LLC

By: /s/ Joy Malby Bertrand

Joy Malby Bertrand 

Attorney for Defendant Joye Vaught

Case 2:18-cr-00422-DJH Document 1151 Filed 04/20/21 Page 8 of 8