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Paul J. Cambria, Jr. (NY Bar No.1430909, admitted pro hac vice) 

Erin McCampbell Paris (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 

pcambria@lglaw.com 

emccampbell@lglaw.com 

Attorneys for Michael Lacey 

Gary S. Lincenberg (CA Bar No. 123058, admitted pro hac vice) 

Ariel A. Neuman (CA Bar No. 241594, admitted pro hac vice) 

Gopi K. Panchapakesan (CA Bar No. 279856, admitted pro hac vice) 

BIRD, MARELLA, BOXER, WOLPERT, NESSIM, 

DROOKS, LINCENBERG & RHOW PC 

1875 Century Park East, 23rd Floor 

Los Angeles, California 90067-2561 

Telephone: (310) 201-2100 

Facsimile: (310) 201-2110 

glincenberg@birdmarella.com 

aneuman@birdmarella.com 

gpanchapakesan@birdmarella.com 

Attorneys for John Brunst 

Additional counsel listed on next page 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA

United States of America, 

 Plaintiff, 

vs. 

Michael Lacey, et al., 

 

 Defendants. 

NO. CR-18-00422-PHX-DJH 

DEFENDANTS’ RESPONSE TO CARL 

FERRER’S MOTION FOR A 

PROTECTIVE ORDER 

 

Case 2:18-cr-00422-DJH Document 1843 Filed 10/06/23 Page 1 of 9
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Eric Kessler 

KESSLER LAW GROUP 

6720 N. Scottsdale Rd., Suite 210 

Scottsdale, AZ 85253 

Telephone: (480) 644-0093 

eric@kesslerlawgroup.com 

Attorney for Scott Spear

Bruce Feder (AZ Bar No. 004832) 

FEDER LAW OFFICE PA 

2930 E. Camelback Road, Suite 160 

Phoenix, Arizona 85016 

Telephone: (602) 257-0135 

bf@federlawpa.com 

Attorney for Scott Spear

David Eisenberg (AZ Bar No. 017218) 

DAVID EISENBERG PLC 

3550 N. Central Ave., Suite 1155 

Phoenix, Arizona 85012 

Telephone: (602) 237-5076 

Facsimile: (602) 314-6273 

david@deisenbergplc.com 

Attorney for Andrew Padilla 

Joy Malby Bertrand (AZ Bar No. 024181) 

JOY BERTRAND ESQ LLC 

P.O. Box 2734 

Scottsdale, Arizona 85252 

Telephone: (602)374-5321 

Facsimile: (480)361-4694 

joy.bertrand@gmail.com 

Attorney for Joye Vaught

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 The Court should deny the motion of the government’s cooperating witness, Carl 

Ferrer, seeking a protective order. First, Ferrer improperly seeks a blanket protective order, 

when, instead, he must assert the privilege on a document-by-document or question-byquestion basis. Second, as Ferrer has appeared and is asserting his privilege rights, Ferrer 

cannot authorize the government to defend any privilege he may have. Third, Ferrer has 

broadly waived privilege, whether through written agreements or by sharing what otherwise 

might have been privileged communications with some Defendants or their entities. 

1. Ferrer’s Request for a Blanket Protective Order is Improper. 

In his motion, Ferrer seeks a “protective order prohibiting Defendants from violating 

his attorney-client privilege or other applicable privileges,” saying he “objects to any question 

or exhibit that intrudes upon privileged communications of any kind.” Doc. 1825, pp. 2, 3. 

Ferrer, in essence, seeks a blanket protective order untethered to any specific 

communication and without having first established the eight elements that must be shown 

for a communication to be privileged: 

(1) When legal advice of any kind is sought (2) from a professional legal 

adviser in his or her capacity as such, (3) the communications relating to that 

purpose, (4) made in confidence (5) by the client, (6) are, at the client’s 

instance, permanently protected (7) from disclosure by the client or by the 

legal adviser (8) unless the protection be waived. 

United States v. Christensen, 828 F.3d 763, 802 (9th Cir. 2016). 

 Ferrer’s request for a blanket protective order does not comport with Ninth Circuit 

law, which requires privilege claims to be asserted and evaluated on a question-by-question 

or document-by-document basis: 

The claim of privilege must be made and sustained on a question-by-question 

or document-by-document basis; a blanket claim of privilege is unacceptable. 

The scope of the privilege should be ‘strictly confined within the narrowest 

possible limits.’ 

Id. at 803. 

In his motion, Ferrer identified just one document, a memorandum he claimed to 

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have sent to his “prior lawyer” James Grant,1 asserting that the memorandum was privileged 

and speculating that Mr. Grant disclosed the memorandum to Defendants in breach of his 

obligations of confidentiality to Ferrer.2 Even as to this one document, Ferrer failed to 

establish the required elements to support his claim of privilege, but instead simply asked the 

Court to accept his naked assertion of privilege. Ferrer’s motion invites error not only by 

seeking a blanket protective order, and doing so based on a naked assertion of privilege, but 

also, as discussed below, because Ferrer has waived any privilege that might have attached to 

the one document identified in his motion. 

1 When Mr. Lincenberg sought to question Ferrer about the memorandum, the Court 

expressed reservations about the authenticity of the document. Ferrer’s motion has 

removed any doubt about the authenticity of the memorandum, as Ferrer admitted that he 

sent it and claimed it was privileged (i.e. a communication from Ferrer to an attorney). 

2 Ferrer’s speculations about Mr. Grant are baseless. First, Ferrer sent the documents at 

issue to Mr. Grant and to Daniel Quigley, an attorney representing Medalist Holdings, Inc. 

(f/k/a New Times, Inc.) and its subsidiaries—the companies owned by Larkin and 

defendants Lacey, Brunst, and Spear. See GL-CF-36, Ferrer’s May 17, 2017, email to Grant 

and Quigley. Mr. Quigley did not represent Ferrer in the California criminal cases. 

Second, as addressed at length in Defendants’ Opposition to United States’ Motion 

to Disqualify Counsel (Doc. 180), in the Declaration of James C. Grant in Support of 

Opposition to United States’ Motion to Disqualify Counsel (which was submitted for in 

camera review in support of Doc. 180) (the “Grant Declaration”), and in Defendants’ 

Opposition to United States’ Motion to Resolve Privilege Issues and Cross-Motion to 

Obtain Discovery and Address Privilege Issues (Doc. 235), Mr. Grant was not Ferrer’s 

personal counsel nor did Mr. Grant have any obligation to keep information provided by 

Ferrer confidential from Messrs. Larkin and Lacey. See also Rstmt. (Third) of the Law Governing 

Lawyers § 75, cmt. d (2000) (“Rules governing the co-client privilege are premised on an 

assumption that co-clients usually understand that all information is to be disclosed to all of 

them. Courts sometimes refer to this as a presumed intent that there should be no 

confidentiality between co-clients. Fairness and candor between the co-clients and with the 

lawyer generally precludes the lawyer from keeping information secret from any one of 

them, unless they have agreed otherwise.”). In any event, even if Mr. Grant had been 

Ferrer’s personal counsel in the California criminal cases and was obliged to keep the 

memorandum confidential, Mr. Quigley plainly had no such obligation. 

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2. The Government Has No Standing to Assert Ferrer’s Privileges.

 In his Motion, Ferrer not only seeks a protective order in his own right but claims 

that he also “authorizes the Government to assert the attorney-client privilege on his 

behalf.” Ferrer cites United States v. Martoma, 962 F. Supp. 2d 602, 605 (S.D.N.Y. 2013), but 

that decision hardly supports the proposition for which he cites it. The court in Martoma

held that the “attorney-client privilege ‘can be asserted only by the client (or one authorized 

to do so on the client’s behalf)”—not by the client (and one authorized to do so on the 

client’s behalf). Id. at 604 (emphasis added). Having asserted his own privilege rights, Ferrer 

cannot authorize the government to also assert those same rights. As the Court said in 

Martoma, “[g]iven that Dr. Gilman has moved to intervene to assert his rights, and has not 

authorized the Government to assert those rights on his behalf, the Government does not 

have standing to assert Dr. Gilman’s privilege here.” Id. at 605. So too here. Ferrer has 

asserted his privilege rights and, therefore, the government has no standing to do so. 

3. Ferrer Has Broadly Waived Privilege.

 In his motion, Ferrer claimed to have waived the attorney-client privilege for his 

companies, but “never waived his personal attorney-client privilege.” Doc. 1825, p. 2. That 

simply is not true. Ferrer waived the attorney-client privilege for his companies and for 

himself personally. 

A. Ferrer Broadly Waived Privilege for His Companies in the Waiver He 

Gave the Government. 

 As Ferrer noted in his motion, on April 5, 2018, Ferrer executed a document entitled 

“Waiver of Attorney Client Privilege.” Doc. 195-3. That privilege waiver said that Ferrer 

was “authorized to waive” the attorney-client privilege for Backpage.com, LLC, Posting 

Solutions LLC, and Postfaster, LLC and that he “voluntarily waived all aspects of the 

attorney-client privilege, on behalf of the Companies.” Id. That waiver would include advice 

that Ferrer obtained from lawyers for the Companies in his capacity as an officer, director, 

manager, or employee of the Companies. 

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B. Ferrer Waived Some of His Personal Privileges in his Proffer/Interview 

Agreement with the Government. 

 Also on April 5, 2018, Ferrer executed a document entitled “Proffer/Interview 

Agreement.” Doc. 940-2, pp. 23-25. That agreement said that: 

Mr. Ferrer voluntarily waives all claims of attorney-client privilege, whether in his personal

or official capacity as the Chief Executive Officer of Backpage.com, LLC as to 

communications with any attorney or law firm that represented Backpage.com, or any 

related entity, where such communications concerned or related to Backpage.com or any 

related entity. This waiver does not apply to Mr. Ferrer’s current attorneys, 

Nanci Clarence, Jonathan Baum and anyone working on their behalf. 

Id., p. 23 (emphasis added). This waiver plainly addresses both Ferrer’s personal attorneyclient privileges, as well as any privileges he might have enjoyed as an officer of 

Backpage.com, LLC. Moreover, as the waiver applies to any attorney or law firm that 

represented Backpage.com or any related entity, it plainly applies to Mr. Grant and Davis 

Wright Tremaine LLP, which represented Backpage.com. Additionally, the fact that the 

waiver expressly carves out Nanci Clarence and Jonathan Baum, who then were Ferrer’s 

personal attorneys, and who did not represent Backpage.com, LLC or Ferrer’s other 

companies, demonstrates that the waiver was not limited to a waiver of corporate privilege, 

as the carve-out otherwise would be utter surplusage. 

C. Ferrer Waived Privilege in his 2017 Joint Defense Agreement with 

Defendants. 

 On June 14 and 15, 2017, Ferrer and his personal counsel, Nanci Clarence, executed a 

Joint Defense/Common Interest and Confidentiality Agreement (the “JDA”) with certain 

Defendants and their counsel. A copy of the JDA is attached as Exhibit C to the Grant 

Declaration. The JDA generally required that defense materials shared amongst the parties 

be kept confidential, but the JDA expressly allowed the disclosure of and use of defense 

materials against a party who subsequently became an adverse witness or took an adverse 

position in this proceeding: 

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Any client signatory who enters into a cooperation agreement with the government or 

who testifies as a witness in any civil, administrative, or criminal proceeding arising 

from the Case3 consents to any other signatory using for defense purposes any 

information or material contributed by the client or by his or her attorney. 

This specifically permits use of contributed information or material in cross-examining the 

witness and permits the presentation of their information or material by the 

defense at any point of the proceedings. 

Grant Declaration, Exh. C, ¶ 6 (emphasis added). Even if the privilege waivers discussed in 

A and B somehow do not apply to the memorandum, this provision of the JDA expressly 

and unambiguously authorizes the defense to cross-examine Ferrer about the 

memorandum—defense materials submitted by Ferrer—and to otherwise use the 

memorandum for defense purposes. 

D. Defendants’ Position Is Not in Conflict with Their Position in 2018 or 

With Judge Logan’s Ruling. 

 Ferrer suggests that Defendants’ attempt to cross-examine Ferrer about his prior 

statements contradicting his trial testimony conflicts with their position on the government’s 

2018 motions to disqualify Davis Wright Tremaine and to “resolve” attorney-client privilege 

issues, and Judge Logan’s rulings on those motions, but that is incorrect. There, the 

government sought to invade privileges held by certain Defendants and their companies based on 

Ferrer’s waivers discussed in A and B above. Defendants argued that Ferrer could not 

unilaterally waive their jointly held privileges and Judge Logan agreed. 

 Here, Ferrer claims the privilege at issue is his personal privilege, not that the 

memorandum is subject to a jointly held privilege. As such, he alone could waive the 

privilege and did so, whether under the Waiver of Attorney Client Privilege, the 

Proffer/Interview Agreement, the JDA, or some combination thereof. Defendants do not 

contend that they could waive Ferrer’s privilege, but that Ferrer waived privilege. As such, 

there simply is no inconsistency between Defendants’ position here and the positions 

advanced when litigating the government’s 2018 disqualification and privilege motions. 

 In any event, even if there was some inconsistency in position, the circumstances 

3 The “Case” was defined as “the Arizona federal grand jury investigation and any related 

proceedings,” which clearly encompasses this trial. Grant Declaration, Exh. C, ¶ 6 

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now are different than in 2018 when the government’s disqualification and privilege motions 

were addressed. Then, Defendants anticipated that Ferrer would testify truthfully. Now, 

Defendants know he has not. Then, Defendants hoped they would not need to exercise 

their rights under Paragraph 6 of the JDA. Now, they need to cross-examine Ferrer about 

how his trial testimony stands in stark contrast to his representations not only to them, but 

to various lawyers, including his personal criminal counsel, Nanci Clarence. Ferrer, 

understandably, does not wish to be confronted with his prior inconsistent statements, but 

he cannot use privilege to hide from the jury the fact that the “story” he has been telling the 

jury over the last few weeks is not what he told Defendants and their counsel over many 

years. 

 RESPECTFULLY SUBMITTED this 6th day of October, 2023, 

Paul J. Cambria, Jr. 

Erin McCampbell Paris 

LIPSITZ GREEN SCIME CAMBRIA LLP 

 By: /s/ Paul J. Cambria, Jr. 

Paul J. Cambria, Jr. 

Attorneys for Michael Lacey 

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

2020) § II (C) (3), Paul J. Cambria 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.

Gary S. Lincenberg 

Gopi K. Panchapakesan 

BIRD, MARELLA, BOXER, WOLPERT, NESSIM, 

DROOKS, LINCENBERG & RHOW, P.C. 

By: /s/ Gary Lincenberg 

Gary Lincenberg 

Attorneys for John Brunst 

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Eric W. Kessler 

KESSLER LAW OFFICE 

By: /s/ Eric W. Kessler 

 Eric W. Kessler 

 Attorneys for Scott Spear 

Bruce Feder 

FEDER LAW OFFICE, P.A. 

By: /s/ Bruce Feder 

Bruce Feder 

Attorneys for Scott Spear 

David Eisenberg 

DAVID EISENBERG, P.L.C. 

By: /s/ David Eisenberg 

David Eisenberg 

Attorneys for Andrew Padilla 

 Joy Bertrand 

JOY BERTRAND, ESQ. 

By: /s/ Joy Bertrand 

Joy Bertrand 

Attorneys for Joye Vaught 

On October 6, 2023, a PDF version of this document was 

filed with Clerk of the Court using the CM/ECF System 

for filing and for Transmittal of a Notice of Electronic 

Filing to the to the CM/ECF registrants who have 

entered their appearance as counsel of record 

Case 2:18-cr-00422-DJH Document 1843 Filed 10/06/23 Page 9 of 9