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ELIZABETH A. STRANGE

First Assistant United States Attorney

District of Arizona

KEVIN M. RAPP (Ariz. Bar No. 014249, 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’ RESPONSE TO 

DEFENDANTS’ MOTION FOR 

FURTHER CLARIFICATION (Doc. 

452)

Summary of Argument

The Court has ruled that the government may continue using a filter team to advance 

the discovery process. The government will do so under the protocol previously approved 

by two magistrate judges in this district. This procedure includes the following steps: (1) 

potentially-privileged material is segregated by culling out all materials that include certain 

search terms (see Doc. 269 at 16: Doc. 269-8); (2) the filter team reviews all the segregated 

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materials and ensures that any materials that may be privileged remain segregated from the 

investigative team; (3) before the filter team submits any materials that may be privileged

to the Court for an in camera determination, the filter team will inform the affected 

Defendants and defense counsel will have an opportunity to file objections with the Court; 

and (4) all non-privileged material is turned over to the investigative team.

Defendants’ motion for further clarification attempts to place the burden of review 

back on the Court. Defendants ask this Court to preclude all non-privileged material from 

being sent to the investigative team until after Defendants file objections and the Court 

reviews the specific non-privileged material. The Court has already rejected this argument. 

(See Doc. 409 at 5; Doc. 445.) The Court should not be burdened by reviewing material 

that is clearly non-privileged. The government’s filter team should be permitted to move 

forward under the protocol listed above.

Relevant Procedural History

Several United States Magistrate Judges in this district have already approved the 

government’s filter team protocol. On July 15, 2016, Judge Burns approved 16-305 MB, 

In the Matter of the Search of Information Associated with the Email Address Listed in 

Attachment A: carl.ferrer@backpage.com, the government’s application for a warrant to 

search and seize information from Mr. Ferrer’s email address: carl.ferrer@backpage.com. 

The original application contained language in its search procedure that once the 

information was received, law enforcement personnel not involved in the investigation 

would review, identify, and copy information related to Backpage.com matters, excluding 

any emails involving Elizabeth McDougall—Backpage’s in house counsel.

On or before October 27, 2016, the government moved to change its protocol for 

how the filter team would review potentially privileged materials. This request was made 

to ensure the privileges of the investigations’ targets would be protected, while also 

allowing the investigative team full access to non-privileged and non-protected materials 

that could be helpful to its investigation. Specifically, the government’s revised protocol 

included the procedure that before submitting any materials to the Court for an in camera

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review the filter team would confer with counsel for the targets of the investigation so that 

counsel would have an opportunity to file objections with the Court. On October 27, 2016, 

Judge Willett approved this revised filter review protocol. (Doc. 195-1; United States’ 

Request to Change the Protocol of the Filter Team Review of Potentially Privileged 

Materials, attached as Exhibit A.)

In 2018, the government obtained three search warrants that included similar 

language related to the filter team protocol.1 All three warrants stated the filter team would 

review documents for privileges or protections only and would disseminate non-privileged 

and non-protected documents to the investigative team, for the investigative team to 

determine what documents constituted evidence of unlawful activity. If the filter team 

identified any potentially privileged or protected materials, prior to submitting the 

materials to the Court for an in camera review and disclosure to the investigative team, the 

filter team would confer with counsel for the affected parties, as appropriate, and counsel 

would have the ability to file objections with the Court. In August 2018, Judge Boyle

approved the government’s application for all three warrants. (See, e.g., August 31, 2018 

Order re 18-8364 MB, attached as Exhibit B.)

Argument

The government’s filter team is the “most efficient way to advance the 

Government’s discovery review.” (Doc. 445 at 2.) The parties are largely in agreement 

on how the filter team should work. Defendants’ motion for further clarification asks the 

Court to issue an order pertaining to four requests—three of which are already explicitly 

or implicitly part of the government’s filter team protocol. (Doc. 452.) Specifically, the 

government will continue to follow the Court’s orders (Defendants’ first request), will 

segregate privileged from non-privileged material (Defendants’ second request), and will 

 

1 The three warrants were: (1) 18-8364 MB, In the Matter of the Search of Backpage 

Related Account Information Stored at a Premises Owned, Controlled, Maintained, or 

Operated by Datto, Inc.; (2) 18-8366 MB, In the Matter of the Search of Five Servers 

Containing Backpage.com Company Data; and (3) 18-8365 MB, In the Matter of the 

Search of the Electronic Devices of Michael Lacey and James Larkin Seized on April 6, 

2018.

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permit Defendants to present objections to this Court when appropriate (Defendants’ fourth 

request). The only remaining dispute is Defendants’ third request to have the filter team 

produce all non-privileged documents to Defendants first, in order to allow Defendants to 

review and make objections to the Court before the material is disclosed to the investigative 

team. 

This argument represents an attempted end run around the Court’s order permitting 

the government to continue its filter review. Defendants ask this Court to shoulder the 

burden of reviewing all material before any documents are shared with the investigative 

team. This request would eliminate all efficiencies associated with the filter team, because 

it would require three separate reviews for every non-privileged document before the 

investigative team would even have the opportunity to review for relevancy.2 This process

would cause unnecessary delay. The request is also inappropriate because it is contrary to 

the procedures already approved by two magistrate judges.

The Court should permit the government to move forward with its filter review 

under the protocol articulated above. This ensures that Defendants will have an 

opportunity to file objections for any material that could potentially be considered subject 

to the attorney-client privilege. The filter protocol also permits the discovery process to 

proceed in the most efficient manner. For these reasons, Defendant’s motion for further 

clarification (Doc. 452) should be denied.

Respectfully submitted this 19th day of February, 2019.

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

 

2 Defendants are urging that the investigative team not receive any non-privileged 

documents until (1) the filter team, (2) the affected Defendant(s) and his or her counsel, 

and (3) the Court, have all had an opportunity to review the material. 

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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

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Certificate of Service

I hereby certify that on this date, February 19, 2019, I transmitted the foregoing under-seal 

document for filing to the Clerk of the United States District Court and sent a copy via 

electronic mail to: Paul J. Cambria Jr. Esq. and Erin e. McCambpell, Esq., Lipsitz Green 

Scime Cambria, LLC, 42 Deleware Ave, Suite 120, Buffalo, NY 14202, 

pcambria@lglaw.com and emccampbell@lglaw.com, Thomas H. Bienert, Jr., Esq., 

Anthony R. Bisconti, Esq., Kenneth M. Miller, Esq., and Whitney Bernstein, Esq., Bienart, 

Miller & Katzman, PLC, 903 Calle Amanecer, Suite 350, San Clemente, CA 92673, 

tbienert@bmkattorneys.com, tbisconti@bmkattorneys.com,

kmiller@bmkattorneys.com, wbernstein@bmkattorneys.com; Mike Piccarreta, Esq., 

Piccarreta Davis Keenan Fidel, PC, 2 East Congress Street, Suite 1000, Tucson, AZ 85701, 

mlp@pdlaw.com; Jim Grant Esq., Davis Wright Termaine, LLP, 1201 Third Avenue, 

Suite 2200, Seattle, WA 98101, jimgrant@dwt.com; Michael D. Kimerer, Esq. and 

Rhonda Elaine Neff, Esq., 1313 E. Osborn Road, Suite 100, Phoenix, AZ 85014, 

MDK@kimerer.com and rneff@kimerer.com; Steve Weiss Esq., Karp & Weiss, PC, 

3060 North Swan Rd., Tucson, AZ 85712, sweiss@karpweiss.com; Robert Corn-Revere 

Esq., Davis Wright Termaine, LLP, 1919 Pennsylvania Avenue N.W., Suite 800, 

Washington, D.C., 20006, bobcornrevere@dwt.com; Bruce Feder, Esq., 2930 East 

Camelback Road, Suite 160, Phoenix, AZ 85016, bf@federlawpa.com; Gary Linenberg, 

Esq., Ariel Neuman, Esq., Gopi K. Panchapakesan, Esq., Bird, Marella, Boxer, Wolpert, 

Nessim, Drooks, Lincenberg & Rhow, P.C., 1875 Century Park East, 23rd Floor, Los 

Angeles, CA 90067, glincenberg@birdmarella.com, aan@birdmarella.com, 

gkp@birdmarella.com.

s/ Angela Schuetta_____

Angela Schuetta

U.S. Attorney’s Office

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