1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Paul J. Cambria, Jr. (Cal. Bar No. 177957) (admitted pro hac vice)

Erin McCampell (NY Bar No. 4480166) (admitted pro hac vice)

LIPSITZ GREEN SCIME CAMBRIA LLP

42 Delaware Avenue, Suite #120

Buffalo, New York 14202

Telephone: (716) 849-1333

Facsimile: (716) 855-1580

Email: pcambria@lglaw.com

emccampbell@lglaw.com

Counsel for Defendant Michael Lacey

Thomas H. Bienert, Jr. (Cal. Bar No. 135311) (admitted pro hac vice)

Whitney Z. Bernstein (Cal. Bar No. 304917) (admitted pro hac vice)

BIENERT, MILLER & KATZMAN, PLC

903 Calle Amanecer, Suite 350

San Clemente, California 92673

Telephone: (949) 369-3700

Facsimile: (949) 369-3701

Email: tbienert@bmkattorneys.com

wbernsteinr@bmkattorneys.com

Counsel for Defendant James Larkin

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

United States of America,

Plaintiff, 

v. 

Michael Lacey, et al.,

Defendants. 

No. CR-18-422-PHX-SPL

OPPOSITION TO GOVERNMENT’S 

MOTION FOR CLARIFICATION RE 

ORDER ON ATTORNEY-CLIENT 

PRIVILEGE ISSUES

Case 2:18-cr-00422-DJH Document 409 Filed 12/10/18 Page 1 of 8
1

3484044, 1, 064037.0001

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

I. INTRODUCTION

The government has moved for “clarification” of the Court’s Order (Doc. 345; 

“Order”) denying the government’s prior Motion to Resolve Attorney-Client Privilege 

Issues (Doc. 195). The Court rejected the government’s prior motion and its arguments 

to access thousands of privileged communications in seized emails, while granting

Defendants’ cross-motion (Doc. 226) to preclude the government’s review, except 

denying Defendants’ request for discovery. See Order at 2, 4, 7, 8.

The Motion for Clarification (Doc. 355; “Motion”) now announces that the 

government plans to continue its review of privileged documents and seeks clarification 

only in the sense that it asks the Court to “confirm” that the government may do as it 

plans. Mot. at 3. The Court’s prior Order was correct in denying the government’s 

request to access privileged communications. The government’s Motion now is little 

more than a thinly disguised effort to avoid the Court’s ruling. Allowing the 

government to carry on with reviewing privileged communications notwithstanding the 

Court’s Order threatens substantial prejudice to Defendants. The Court should deny the 

government’s Motion.

II. BACKGROUND

In its Motion to Resolve Privilege Issues, the government sought an order 

allowing it to access privileged communications among the hundreds of thousands of 

emails the government seized in its investigation of Defendants. The government 

argued that Carl Ferrer had waived all privileges relating to Backpage.com and that prior 

rulings of Judge Campbell and a Washington State court in a civil case effected broad 

subject matter waivers of privilege. See Doc. 195 at 4-13; Order at 2-3. The 

government also argued that it should be permitted to access all communications that 

predated the sale of Backpage.com, LLC (“Backpage.com”) to Ferrer in April 2015, 

and, indeed, all documents predating December 2016. See Doc. 269 at 2-3, 9-11. The 

government also contended the Court should allow access to all communications 

involving Elizabeth McDougall (former general counsel of Village Voice Media 

Case 2:18-cr-00422-DJH Document 409 Filed 12/10/18 Page 2 of 8
2

3484044, 1, 064037.0001

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Holdings, LLC), all communications with attorneys other than Davis Wright Tremaine 

LLP, and any documents concerning the subject matters of ad moderation or the alleged 

“prevalence of prostitution ads on the Backpage website.” Id. at 3, 8, 12-14, & 14 n.3. 

The government urged that use of its “filter team” was sufficient to protect Defendants’ 

privilege rights, id. at 15-16, although it refused to provide any information about the 

team’s review of materials, protocols employed, etc.

Defendants responded that the government had fundamentally misunderstood 

which parties hold privileges, disregarded the parties’ joint representation agreements, 

and misstated the law (particularly in the context of jointly-held privileges). See Docs. 

226, 324. Defendants also objected that the government’s use of a “filter team” to 

review privileged communications was improper under the circumstances, and, by crossmotion, Defendants sought an order blocking the government from continuing to access 

privileged communications. Doc. 226 at 3, 20-23, 24. 

In its Order, the Court rejected the government’s arguments and denied its 

requests to “allow[] access to the privileged communications.” Order at 2. The Court 

held that Ferrer could not waive privileges under the terms of the joint representation 

agreements he accepted. Id. at 3-4. It concluded that Judge Campbell’s order required 

production of only the specific emails but did not effect “a broad subject-matter waiver 

of the contents of the remaining emails.” Id. at 5. The Court held that the Washington 

superior court’s order could not “warrant disclosure of privileged communication in this 

case.” Id. at 7. In sum, the Court denied the government’s motion and granted 

Defendants’ cross-motion “to prohibit the Government from accessing the privileged 

email communications at issue.” Id. at 7. The Court denied Defendant’s request for 

discovery to understand whether the government had already accessed privileged 

information in interviews of Ferrer or by activities of its filter team, concluding that “[a]t 

this time,” such discovery would not be “necessary or helpful.” Id. at 8.

Case 2:18-cr-00422-DJH Document 409 Filed 12/10/18 Page 3 of 8
3

3484044, 1, 064037.0001

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

III. ARGUMENT

In its Motion now, the government announces that it intends to continue 

accessing privileged communications through its “filter team” and seeks “clarification to 

inform the Court and Defendants of its plan moving forward.” Mot. at 3. The Court’s 

prior Order rejected the government’s arguments and prohibited the government from 

accessing privileged communications. Order at 8. This should be the end of any 

consideration of the government’s putative “clarification” request. No means no. 

The government has indicated that it screened the emails seized through its 

warrants to Google and to the California Attorney General’s office,1 initially segregating 

and setting aside communications involving attorneys. See Doc. 195 at 2, 3; Order at 2.2

 

The government also said that its “filter team” had “turned over to the prosecution team” 

materials it believed were not privileged. Doc. 195 at 2. But the government has 

refused to identify what documents its “filter team” has reviewed and turned over, what 

protocols were used, or what criteria were applied to make privilege determinations.

3

 

The prior briefing on the government’s motion to “resolve privilege issues” 

demonstrated that the government fundamentally misunderstands the corporate and 

attorney-client relationships concerning Ferrer, Defendants, and their respective 

 

1 The California Attorney General’s office obtained the emails from Google (which 

provided hosting and email services for Backpage.com and for Defendants’ personal 

accounts) through separate warrants, which are subject to a pending motion to dismiss or 

suppress in the California case, People v. Ferrer, No. 16FE024013 (Sacramento Cty. 

Sup. Ct.). 

2 Defendants previously raised concerns about the government’s representations 

regarding what its “filter team” segregated and has reviewed or disclosed. See, e.g.,

Doc. 235 at 10-13, 22-23; Doc. 324 at 8-11 & n.6. For example, the government 

initially stated that it would segregate only email communications with Ms. McDougall, 

then said it had segregated communications involving four individual attorneys and two 

law firms, then said it had segregated materials based on a list of 265 search terms. See 

Doc. 235 at 11-12; Doc. 324 at 11 n.6. 

3 The government has also stated that its “filter team” substantively reviewed the 

majority of all the potentially privileged documents, some 6,500 documents in all 

(taking the government’s word on this score). Doc. 195 at 4. 

Case 2:18-cr-00422-DJH Document 409 Filed 12/10/18 Page 4 of 8
4

3484044, 1, 064037.0001

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

corporate entities, and disregarded the parties’ joint representation agreements 

preserving privileges. Defendants cannot repeat all of this here (and should not have to 

cover again what the Court has decided). Suffice to say that it is inconceivable the 

government could make appropriate privilege determinations given its 

misunderstandings of the parties, their relationships with each other and with counsel, 

and the terms and import of the joint representation agreements. 

The use of a “filter team” to review privileged communications in this context is 

uniquely inappropriate. As discussed before, Doc. 235 at 20-21, this practice has been 

broadly criticized because it inherently invades privilege protections. Using a “filter 

team” does not prevent the government from reviewing privileged documents but 

merely “changes the identity of the government attorneys and agents who first review 

that information.” Loren E. Weiss & Gregory S. Osborne, Taint Teams and the 

Attorney-Client Privilege, Am. Bar Ass’n (Dec. 2015). The practice presents “inevitable 

and reasonably foreseeable risks that privileged information may be leaked to 

prosecutors.” United States v. Renzi, 722 F. Supp. 2d 1100, 1112 (D. Ariz. 2010) 

(quoting In re Grand Jury Subpoena, 434 F.3d 511, 523 (6th Cir. 2006)); see also 

United States v. Pedersen, 2014 WL 3871197, at *29 (D. Or. Aug. 6, 2014) (“It would 

be a rare defendant who would feel comfortable speaking openly with its defense 

attorney knowing that somebody from the government, even a filter team attorney, was 

reviewing those communications.”). 

The government largely takes as a given that it may continue to access and 

review privileged documents through its “filter team,” notwithstanding the Court’s 

Order denying access to privileged communications. The government’s position is 

particularly troubling because it seeks to take advantage of the Court’s denial of 

Defendants’ request for discovery “at this time.” The government seeks to continue 

reviewing privileged communications without any disclosure or oversight about what 

documents it is reviewing, what criteria are being applied for privilege determinations

(or were applied in the past), and/or what privileged information Ferrer may have 

Case 2:18-cr-00422-DJH Document 409 Filed 12/10/18 Page 5 of 8
5

3484044, 1, 064037.0001

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

provided before (albeit improperly under the parties’ joint representation agreements). 

The Court’s denial of Defendants’ request for discovery seemed logically interrelated 

with its Order precluding the government from accessing or reviewing privileged 

communications—if the government cannot access potentially privileged information, 

there is no need for discovery about its processes.4

 On the other hand, if the government 

were to charge ahead and substantively review and share privileged communications, 

Defendants would be severely prejudiced if they can have no information about what the 

government is doing or has done. 

Accordingly, if the Court is inclined to consider permitting the government to 

resume reviewing privileged communications, Defendants renew their request for 

discovery, including disclosure of all review protocols, all documents that have been 

segregated and those determined to be privileged (or not), communications between the 

government’s “filter team” and its “prosecution team,” and all communications with 

Ferrer about attorney communications or work. If the government were to proceed with 

invading privilege rights, Defendants’ concerns about fairness and due process are wellfounded, and the Court should allow discovery to give Defendants an opportunity to 

understand and further challenge the government’s review, as appropriate. 

/

/

/

/

/

/

/

/

 

4 To be clear, Defendants reserve all arguments and objections about the government’s 

review of privileged communications and the denial of discovery on this score. 

Case 2:18-cr-00422-DJH Document 409 Filed 12/10/18 Page 6 of 8
6

3484044, 1, 064037.0001

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

IV. CONCLUSION

Defendants respectfully request that the Court deny the government’s request for 

“clarification” of the Order precluding the government from accessing privileged 

communications. The government’s “filter team” has segregated communications 

involving attorneys, and, in accordance with the prior Order, the government should not 

be allowed to access or review these materials. 

DATED this 10th day of December, 2018.

LIPSITZ GREEN SCIME CAMBRIA LLP

By: s/ Paul J. Cambria, Jr.

Paul J. Cambria, Jr. 

Erin McCampell Paris

Counsel for Defendant Michael Lacey

BIENERT, MILLER & KATZMAN, PLC

By: s/ Thomas H. Bienert, Jr.

Thomas H. Bienert, Jr. 

Whitney Z. Bernstein 

Counsel for Defendant James Larkin

Case 2:18-cr-00422-DJH Document 409 Filed 12/10/18 Page 7 of 8
7

3484044, 1, 064037.0001

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

CERTIFICATE OF SERVICE

I hereby certify that on December 10, 2018, a true and correct copy of the 

foregoing document was electronically filed with the Clerk of the United States District 

Court of the District of Arizona by using the CM/ECF system, and that service will be

accomplished by the CM/ECF system to all counsel of record.

s/ April Kelly

 April Kelly

Case 2:18-cr-00422-DJH Document 409 Filed 12/10/18 Page 8 of 8