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

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. (NY 15873, admitted pro hac vice)

pcambria@lglaw.com

Erin E. McCampbell (NY 4480166, 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

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

tbienert@bmkattorneys.com

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

wbernstein@bmkattorneys.com

BIENERT, MILLER & KATZMAN, PLC

903 Calle Amanecer, Suite 350

San Clemente, California 92673

Telephone: (949) 369-3700

Facsimile: (949) 369-3701

Attorneys for Defendant James Larkin

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-SPL (BSB)

DEFENDANTS LACEY’S AND 

LARKIN’S OPPOSITION TO 

GOVERNMENT’S MOTION FOR 

ACCESS TO THE JOINT 

REPRESENTATION AND JOINT 

DEFENSE AGREEMENTS (DOC. 354)

(Oral argument requested)

On October 26, 2018, the government filed its Motion for Access to the Joint 

Representation and Joint Defense Agreements Previously Submitted by Defendants Michael 

Lacey and James Larkin for In Camera Review (“Motion for Access”). (See Doc. 354.) 

Case 2:18-cr-00422-DJH Document 408 Filed 12/10/18 Page 1 of 15
2

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

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

Defendants Michael Lacey and James Larkin submit the instant memorandum of law in 

opposition to the Motion for Access. As set forth in greater detail below, this Court should deny 

the Motion because the government has waived the opportunity to bring this Motion. More 

importantly, this Court should deny the Motion on the papers because the Motion is disruptive 

to the fair, orderly, and efficient litigation of this complex criminal action. Finally, this Court 

should deny the Motion because the documents the government seeks are privileged and there 

has been no waiver of privilege. 

BACKGROUND

Recently, this Court issued orders denying two of the government’s motions. (See Docs. 

345, 338.) Both denials were supported, in part, by this Court’s consideration of certain 

documents defendants submitted in camera on notice to the government well in advance of this 

Court’s October 5, 2018 hearing. (See id.) Now, many months after the documents were 

submitted in camera but after its failed motion to disqualify counsel, the government filed its 

Motion for Access, in which it seeks accessfor the first time to those in camera submissions for 

the purpose of litigating its unsuccessful motions a second time. The government had ample 

opportunity to challenge the in camera submission, but did not do so. Instead, the government 

made the strategic choice to challenge the relevance of those documents to resolution of its 

motions. The record demonstrates that the Motion for Access is nothing more than an 

unwarranted attempt at a “do-over.” 

I. The government did not challenge defendants’ submission of in camera exhibits

during the litigation of its motions.

On April 24, 2018, the government moved to disqualify the law firm of Davis Wright 

Tremaine LLP (“DWT”) from representing any of the defendants named in the superseding 

indictment and the law firm of Henze Cook Murphy PLLC (“HCM”) from representing 

defendant Lacey in this prosecution (“Motion to Disqualify”). (See Doc. 118.) 

On June 6, 2018, defendants Larkin and Lacey filed their Opposition to the Motion to 

Disqualify (“Defendants’ Opposition”). (See Doc. 180.) In support, defendants submitted a 

Case 2:18-cr-00422-DJH Document 408 Filed 12/10/18 Page 2 of 15
3

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

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

declaration from James C. Grant, an attorney with DWT, under seal for in camera review with 

certain documents attached as exhibits (“Grant Declaration”). The exhibits to the Grant 

Declaration included three joint representation agreements: (1) an engagement letter advising 

Carl Ferrer, Lacey and Larkin on the parameters of DWT’s joint representation and providing 

for consent to such representation, which was executed by all three individuals (Grant Decl. Ex. 

A); (2) a Common Interest and Litigation Management Agreement (“CI/LM Agreement”) 

(Grant Decl. Ex. B); and (3) a Joint Defense Agreement (“JDA”) (Grant Decl. Ex. C)

(collectively, the “In Camera Exhibits”).

1

 

Defendants submitted the In Camera Exhibits to this Court because the government was 

attempting to interfere with their Sixth Amendment right to counsel of choice by seeking 

disqualification of DWT without understanding or presenting to this Court the true nature of the 

relationships among counsel and the parties (both individually and as to their corporate entities). 

Those documents squarely refuted the government’s conflict claims. To preserve the privileged 

nature of the documents, defendants submitted them under seal for in camera review and in 

public filings referred only generally to the topics discussed in the In Camera Exhibits. (See, 

e.g., Defs.’ Opp’n at 6 (“Because the agreements about DWT’s representation are privileged, 

they are provided in camera . . . and are described here only generally.”).)

On June 13, 2018, the government filed three reply briefs in support of their Motion to 

Disqualify. (See Docs. 192, 193, 194.) One of the briefs said nothing about the In Camera 

Exhibits. (See Doc. 192.) Another brief disputed the relevance of the In Camera Exhibits to the 

issues pending before the Court, but made no request for access to those documents. (See Doc. 

194.) In the third brief (its reply on the motion to disqualify DWT) the government focused its 

 1 Additionally, defendants submitted correspondence that contained quotes from the 

joint representation agreements as part of its in camera submission (see Grant Decl. Exs. 

D-I); however, the government’s Motion for Access does not seek access to those 

privileged documents (Doc. 354 at 2). Consequently, the instant opposition is limited to 

the government’s request for access to the joint representation agreements (Grant Decl. 

Exs. A-C), even though all of those exhibits are privileged. 

Case 2:18-cr-00422-DJH Document 408 Filed 12/10/18 Page 3 of 15
4

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

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

argument on a declaration from Ferrer (see Doc. 193 at 4-9; see also Doc. 193-9) and said in 

passing that Ferrer’s summary of the CI/LM Agreement “suggests it isn’t covered by the 

attorney-client privilege,” and “[i]f the Court agrees, it should order the defendants to provide a 

copy to the government.” (Doc. 193 at 7.) This was the only allusion the government made 

regarding accessing the In Camera Exhibits. The government never moved for disclosure of the 

In Camera Exhibits or otherwise request that they be provided in this brief or any other 

submission to this Court. 

On June 28, 2018, defendant Lacey filed a Motion for Disclosure of Documents 

Related to Carl Ferrer’s Waiver of Privilege as Material to Disqualification, seeking 

discovery to challenge the Motion to Disqualify. (See Doc. 202.)

On June 14, 2018, the government filed its Motion to Resolve Attorney-Client Privilege 

Issues in which it sought an order allowing it to review privileged communications because, 

according to the government, Ferrer waived privileges (“Motion to Resolve Privilege Issues”). 

(See Doc. 195.) In their opposition, defendants discussed the In Camera Exhibits explaining 

that, under the parties’ agreements, Ferrer could not unilaterally waive privilege. (Doc. 235 at 

7-9, 17-18.) Defendants reiterated that those documents had been submitted in camera because 

they were privileged. (Id. at n.9.) In its August 17, 2018 reply, the government acknowledged 

that the joint representation agreements had been filed in camera (see Doc. 269 at 7 (“The 

government cannot speak directly to what the written agreements say, because Defendants have 

filed all such agreements in camera.”); see also id. at 2), but again did not seek disclosure of the 

documents.

On October 5, 2018, the parties appeared for the hearing on the Motions to Disqualify 

and to Resolve Privilege Issues, in addition to other motions. At the hearing, the government 

made no application for access to the In Camera Exhibits, even though it was clear that the Court 

had reviewed them and would likely consider them in resolving the Motions. (See 10/5/18 Tr., 

Docs. 347, 348.) Instead, the government made arguments about why it contended that the joint 

representation agreements did not refute their motions. (See Doc. 347 at 14-16; Doc. 348 at 74-

Case 2:18-cr-00422-DJH Document 408 Filed 12/10/18 Page 4 of 15
5

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

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

75.) Further, this Court expressly warned the government that it had the opportunity to bring 

any additional issues to the Court’s attention prior to taking the Motion to Disqualify under 

consideration. (Doc. 347 at 21 (“This is your last chance, as it relates to [the Motion to 

Disqualify]).”) Once again, the government made no request for access to the In Camera 

Exhibits. (See Docs. 347, 348.) 

II. This Court issues two orders rejecting the government’s motions.

On October 12, 2018, this Court issued an Order denying the Motion to Disqualify. (See

Doc. 338.) This Court held that “the express terms of the JRA and JDA are fatal to the 

Government’s argument for disqualification” because the agreements contained a waiver of 

future conflicts and Ferrer executed them upon advice of counsel. (Id. at 7 (footnote omitted).) 

This Court acknowledged that “it may be difficult for the Government to understand what it 

cannot see,” nonetheless, this Court ruled that the terms of the joint representation agreements 

must be enforced and those terms rendered the Motion to Disqualify infirm. (Id. at 9.) The 

Court noted – as the record amply reflected – that “the Government does not dispute the 

existence or validity of either agreement.” (Id. at 7 n.8.) 

On October 18, 2018, this Court issued an Order denying the Motion to Resolve Privilege

Issues. (Doc. 345.) Again, the joint representation agreements were relevant to the Court’s 

analysis. (See id. at 3-4.) In denying the motion, this Court explained that the “plain text of the 

JDA states that the materials shared between the parties to the JDA are to be protected from 

disclosure unless the disclosing party first obtains the written consent of all parties,” which Ferrer 

had not done. (Id. at 4.) Similarly, Ferrer was bound to uphold the terms of the CI/LM 

Agreement. (Id. at 4 n.3.) Again, the Court recognized that the government made no effort to 

dispute the validity of the joint representation agreements, which were submitted to this Court

for in camera review only. (Id.)

III. The government seeks a second opportunity to litigate the Motions.

In the Motion for Access, the government claims that it needs access to the In Camera

Exhibits to “meaningfully assess” this Court’s Orders. (Doc. 354 at 10.) The government faults 

Case 2:18-cr-00422-DJH Document 408 Filed 12/10/18 Page 5 of 15
6

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

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

defendants for submitting the joint representation agreements for in camera review without 

“showing that the attorney-client privilege applies.” (Id. at 3.) The government argues that the 

agreements are “highly relevant and material” to resolution of its Motions (id. at 4-8); yet, as 

discussed below, offers no explanation or excuse for why it did not seek access to these “highly 

relevant and material” documents prior to the October 5, 2018 hearing or before the Court ruled 

on the Motions. Finally, the government claims that the documents should be disclosed because 

defendants’ submissions constitute a waiver of privilege. (Id. at 8-10.) 

ARGUMENT

There is no merit to the government’s claims. First, the government waived the 

opportunity to bring the Motion for Access. Second, this Court should deny the Motion on the 

papers because it is an affront to the orderly, fair, and efficient resolution of this action. Finally, 

the In Camera Exhibits are privileged, and compelled disclosure of them would constitute an 

unwarranted intrusion into the defendants’ privilege rights, strategies, and defenses.

I. The government has waived the ability to seek access to the In Camera Exhibits.

The government failed to take any steps to obtain access to the In Camera Exhibits in the 

months prior to the hearing on the Motions, or at any time before this Court issued its Orders, 

even though the government had ample opportunity to bring such a challenge. Now, months 

later, and after this Court heard argument and issued its Orders, the government has finally 

determined that it wants access to those documents. However, the time to challenge defendants’ 

in camera submission was months ago when it occurred, not now. For this reason alone, this 

Court should deny the Motion for Access.

It is well-settled that the government, like any litigant, can waive an argument by failing 

to properly present it. See United States v. Hoffman, 2015 WL 5604419, at *2-4 (E.D. Cal. Sept. 

23, 2015) (granting motion to dismiss because the government waived its arguments against 

dismissal by failing to submit a timely brief in opposition to the defendants’ motion); see also 

United States v. Nunez, 223 F.3d 956, 958 (9th Cir. 2000) (“As a general matter, the 

government may waive certain defenses by not raising them in a timely manner.”); United 

Case 2:18-cr-00422-DJH Document 408 Filed 12/10/18 Page 6 of 15
7

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

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

States v. Doe, 53 F.3d 1081, 1082-83 (9th Cir. 1995) (ruling that the government’s failure to 

raise the issue of defendant’s waiver as a barrier to reversal of his conviction, when the 

government instead argued for affirmance of the conviction on the merits in its briefs and during 

oral argument, constituted waiver of the government’s argument). 

A party fails to properly present an argument when the party presents the argument for 

the first time during the hearing on a motion, when it could have been presented in pre-hearing 

submissions. See Hoffman, 2015 WL 5604419, at *2-4 (granting dismissal of indictment and 

declining to allow the government to present its opposition to the defendant’s motion to dismiss 

for the first time at oral argument on the motion when the government failed to submit any 

written opposition prior to argument because that failure constituted waiver of the argument). 

Further, a party fails to properly present an argument when the party’s “argument” is nothing 

more than a stray comment in a brief, rather than an argument point developed and supported by 

relevant authority. See United States v. Murguia-Rodriguez, 815 F.3d 566, 572-73 (9th Cir. 

2016) (recognizing that the government waives its harmless-error argument “even when the 

government ‘mentions’ that harmless error applies in its brief but fails to advance a 

developed theory about how the errors were harmless”). 

This Court should not entertain the Motion for Access at this late date. The government 

was on notice as to the importance of the In Camera Exhibits when defendants submitted them 

as part of their opposition to the Motion to Disqualify and urged this Court to deny the Motion 

on the basis of those documents. That submission occurred four months prior to the October 5, 

2018 hearing. Then, defendants emphasized the documents a second time in their opposition to 

the Motion to Resolve Privilege Issues, again asserting that those documents provided a basis 

for denial of the Motion. (See Doc. 235.) There can be no legitimate claim that the government 

was unaware of the importance of those documents to this Court’s resolution of the motions. 

Indeed, this Court recognized that the government was aware of the joint representation 

agreements submitted in camera and that the government had not disputed their validity. (See

Doc. 338 at 7 n.8; Doc. 345 at 4 n.3.) 

Case 2:18-cr-00422-DJH Document 408 Filed 12/10/18 Page 7 of 15
8

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

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

The government had ample opportunity to raise any evidentiary or discovery issues prior 

to this Court’s October 5, 2018 hearing on the motions. In the four months that passed from 

defendants’ submission of the In Camera Exhibits to the October 5, 2018 hearing, the 

government filed no such motions. In contrast, Defendants filed two motionsseeking disclosures

and discovery prior to the October 5, 2018 hearing (see Docs. 202, 235), which the government 

opposed (see Docs. 216, 269). When defendants believed discovery was necessary to fully 

oppose the Motions, defendants took steps to gain access. In contrast, the government did 

nothing to seek access to the In Camera Exhibits, which the government now claims are “highly 

relevant and material” to the re-litigation of its own motions. 

Under these circumstances, the government has waived any bases to bring the Motion 

for Access. See Hoffman, 2015 WL 5604419, at *2-4; see also United States v. Grandberry, 

730 F.3d 968, 980 n.10 (9th Cir. 2013) (recognizing that “the district court would almost 

certainly have had the discretion to refuse to entertain an issue first raised after the briefing 

and hearing on the motion to suppress”); United States v. Smith, 506 F. App’x 600, 602 (9th 

Cir. 2013) (recognizing that the district court’s refusal to entertain an argument raised by the 

government for the first time in its objections to a magistrate’s report and recommendation was 

an appropriate exercise of discretion). The government had notice and ample opportunity to 

develop the record prior to the October 5, 2018 hearing on the Motions with respect to any 

evidentiary issues, and it should not get a do-over.

The government’s Motion for Access also cannot be founded on its stray mention of the 

CI/LM Agreement in the scores of pages of prior briefing on the Disqualification Motion and 

the Motion to Resolve Privilege Issues. (E.g., Doc. 193 at 7 (suggesting the CI/LM Agreement 

might be disclosed “[i]f the Court agrees” that “it isn’t covered by the attorney-client privilege”).) 

As the Ninth Circuit has explained, waiver occurs even when the government “mentions” an 

argument in passing but does not make an explicit request or develop and explain an argument. 

See Murguia-Rodriguez, 815 F.3d at 572-73 (explaining that “mention[ing]” an argument is 

insufficient to be considered presenting the argument to a court). Here, the government’s 

Case 2:18-cr-00422-DJH Document 408 Filed 12/10/18 Page 8 of 15
9

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

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

isolated comment in a reply brief does not constitute proper presentation of an argument for this 

Court’s consideration. See id. 

Critically, in this case, the party that failed to properly present an argument to this Court 

is the federal government, which is to be held to a higher standard than any other litigant. See 

Hoffman, 2015 WL 5604419, at *2-4 (dismissing indictment because the government waived 

its right to oppose dismissal and noting that one of the reasons the court found waiver appropriate 

was that “the failure here was on behalf of the federal government, which the Court holds to a 

higher standard than the usual litigant”); see also Smith, 506 F. App’x at 602 n.3 (“[T]he party 

who failed to raise arguments in a timely fashion is not a party to whom we feel especially 

compelled to grant the benefit of the doubt—someone who like a pro se petitioner is bereft of 

legal guidance and litigation experience. Rather, it is the federal government.”).

Finally, the government has not offered any excuse or any showing of good cause for its 

failure to file the Motion for Access before now. The ability to move for access to the In Camera

Exhibits was “available to the government throughout the entirety of the proceedings”; the 

government simply elected not to pursue that issue. See Smith, 506 F. App’x at 602 n.3. The 

government should not get a free pass on its litigation choices.

For all these reasons, defendants respectfully request that this Court deny the Motion for 

Access because the issues presented therein have been waived by the government. 

II. This Court should reject the government’s attempt to re-litigate unsuccessful 

motions as an affront to the orderly, fair, and efficient litigation of criminal cases.

The Motion for Access is little more than an attempt to re-litigate two resolved motions

a second time. This Court should reject this litigation approach because allowing do-overs and 

second bites (advancing no proper grounds for reconsideration) disrupts the orderly, fair, and 

efficient litigation of this complex criminal action. 

At considerable expense, counsel for defendants filed oppositions to the Motions to 

Disqualify and to Resolve Privilege Issues, went through multiple rounds of briefing, and 

prepared for and traveled to Arizona to appear at the October 5, 2018 hearing. Now the 

Case 2:18-cr-00422-DJH Document 408 Filed 12/10/18 Page 9 of 15
10

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

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

government seeks to reopen what has been decided, requiring defendants to expend more time 

and resources to address a motion the government chose not to raise before. As a matter of 

fundamental fairness, defendants should not be forced to bear extra costs simply because the 

government is displeased with the results of its litigation strategy. This is particularly so because

the government has engaged in extensive seizures of defendants’ assets and attorney retainers, 

and has otherwise pursued a tack of multiplying proceedings and motions (such as the Motion 

for Disqualification and the Motion to Resolve Privilege Issues), to bleed defendants of resources 

and deprive them of the ability to defend the charges in this action. Having to address the Motion 

for Access forces defendants to stretch an already tenuously thin defense budget even further.

As a matter of its inherent authority to oversee orderly, fair, and efficient litigation of 

criminal actions, this Court should deny the Motion for Access as improper and untimely 

because it could have and should have been brought prior to the October 5, 2018 hearing. See 

Dietz v. Bouldin, 579 U.S. ___, 136 S.Ct. 1885, 1892 (2016) (“[D]istrict courts have 

the inherent authority to manage their dockets and courtrooms with a view toward 

the efficient and expedient resolution of cases.”); United States v. W.R. Grace, 526 F.3d 499, 

509 (9th Cir. 2008) (recognizing “[a]ll federal courts are vested with inherent powers 

enabling them to manage their cases and courtrooms effectively and to ensure obedience 

to their orders”). There could be no better exercise of inherent authority than to deny the 

Motion for Access, which is imposing needless additional costs on defendants, causing 

avoidable delay on the finality of the resolution of the government’s attempt to deprive 

defendants of their Sixth Amendment rights to counsel of choice, and interfering with a 

prompt resolution of this complex action on its merits by bogging down the parties and the 

Court with side litigation about litigation.

The stated purpose of the Motion for Access is for the government to obtain the In 

Camera Exhibits to use them to “assess” the validity of the Orders, and then to move for 

reconsideration. (See Doc. 354.) The Court reviewed, understood, and correctly applied the 

joint representation agreements that are the In Camera Exhibits. The government’s eleventhCase 2:18-cr-00422-DJH Document 408 Filed 12/10/18 Page 10 of 15
11

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

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

hour motion to access the In Camera Exhibits, seeking to override attorney-client and work 

product privileges (again), cannot change the terms or import of the agreements. This is simply 

not one of the “rare circumstances” requisite for reconsideration. See Defenders of Wildlife v. 

Browner, 909 F. Supp. 1342, 1351-52 (D. Ariz. 1995) (denying reconsideration because the 

movant failed to present “rare circumstances” warranting revisiting an otherwise final decision). 

Even if the government could override privilege protections to access the agreements in an effort 

to argue against the Court’s interpretations, it is difficult to see how this could constitute 

“manifest error” or facts or legal authority that “could not have been brought to [the Court’s] 

attention earlier with reasonable diligence. See L.R. Civ. 7.2(g)(1). 

Instead, the government would be moving for reconsideration to seek a second 

opportunity to litigate its Motions on the grounds already argued and rejected by this Court, 

which is impermissible. See United States v. Alva, 2017 WL 4856154, at *2 (D. Nev. October 

25, 2017) (denying reconsideration and recognizing that “[g]ranting a motion to reconsider is an 

‘extraordinary remedy, to be used sparingly in the interests of finality and conversation of 

judicial resources’” (quoting Carroll v. Nakatani, 342 F.3d 934, 945 (9th Cir. 2003))); United 

States v. Cornejo, 2017 WL 4022412, at *1 (D.N.M. Sept. 11, 2017) (denying government’s 

motion for reconsideration and explaining that “[a] motion to reconsider is not a second

chance for the losing party to make its strongest case[,] to revisit issues that have already 

been addressed[,] or to dress up arguments that previously failed” (quotations omitted)). 

For all these reasons, the Court should deny the Motion for Access on the papers.

III. This Court should deny the Motion for Access because the In Camera Exhibits are 

privileged and should not be disclosed to any non-signatory.

The In Camera Exhibits are privileged, there has been no waiver, and they should not be 

disclosed. The government is simply wrong in arguing otherwise.

Courts have an obligation to protect criminal defendants from any “unjustified intrusion 

into the attorney-client relationship,” which includes protecting against disclosure of privileged 

Case 2:18-cr-00422-DJH Document 408 Filed 12/10/18 Page 11 of 15
12

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

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

communications to the government. In re Grand Jury Witness, 695 F.2d 359, 362 (9th Cir. 

1982). The Ninth Circuit has explained that the following categories of documents, among 

others, are privileged and should not be disclosed to the government in a criminal prosecution: 

(1) any document reflecting “the client’s ultimate motive for litigation or for retention of an 

attorney”; (2) “[c]onfidential communications between attorney and client made in order to 

obtain legal assistance”; (3) “correspondence between attorney and client which reveals the 

client’s motivation for creation of the relationship or possible litigation strategy”; and (4) 

documents that “reveal the nature of services provided.” Id. 

Here, the joint representation agreements that are the In Camera Exhibits are privileged 

because they contain the types of information the Ninth Circuit has recognized as privileged and 

as to which disclosure to the government cannot be compelled. (See Grant Decl. Exs. A-C.) 

Providing the In Camera Exhibits would violate the Ninth Circuit’s “clear and unambiguous” 

dictate to courts to refrain from ordering disclosure of such documents to the government. In re 

Horn, 976 F.2d 1314, 1317-18 (9th Cir. 1992) (concluding that a subpoena requesting that an 

attorney “produce letters of consultation and retainer agreements describing the intended scope 

of the attorney-client relationship . . . may reveal the client’s motivation for seeking legal 

representation, the nature of the services provided or contemplated, strategies to be employed in 

the event of litigation, and other confidential information” which “constitutes ‘an unjustified 

intrusion into the attorney-client relationship’” (quoting In re Grand Jury Witness, 695 F.2d at 

362)). Parties’ communications about their joint interests and common issues as part of their 

decisions about their legal positions and retention of counsel are also plainly privileged. See

Hunydee v. United States, 355 F.2d 183, 184-85 (9th Cir. 1965) (reversing conviction and 

recognizing that statements concerning “common issues” that were made “to facilitate 

representation in possible subsequent proceedings” are privileged and should not be disclosed to 

the government in a criminal prosecution); Eisenberg v. Gagnon, 766 F.2d 770, 787-88 (3d Cir. 

1985) (“Communications to an attorney to establish a common defense strategy are privileged,” 

including communications that are “part of an ongoing and joint effort to set up a common 

Case 2:18-cr-00422-DJH Document 408 Filed 12/10/18 Page 12 of 15
13

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

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

defense strategy between a defendant and an attorney who was responsible for coordinating 

a common defense position.”).

None of the government’s cases support interference with defendants’ privilege rights 

and Sixth Amendment rights. The government relies primarily on select civil cases, which do 

not address the fundamental constitutional rights at issue for a criminal defendant to disclose 

joint representation or defense agreements to the government. Compelling such disclosure in a 

criminal action implicates Sixth Amendment rights, fair trial rights, and “the integrity of the 

proceedings.” United States v. Stepney, 246 F. Supp. 2d 1069, 1078 (N.D. Cal. 2003) 

(conducting an in camera review of the joint defense agreements at issue “to avoid offering the 

prosecution any hint of defense strategies,” which would violate a defendant’s constitutional 

rights). Notably, in contrast to the few civil cases the government cites, courts uniformly accept 

in camera submission of joint representation agreements in criminal actions. See United States 

v. Friedman, 2018 WL 3456341, at *9 (recognizing that courts “frequently rely” on “ex parte or 

in camera procedures . . . to protect privileges and defendants’ rights” and allowing an in camera

submission of “evidence of joint representation”); Stepney, 246 F. Supp. 2d at 1078 (conducting 

in camera review of a joint defense agreement “to avoid offering the prosecution any hint of 

defense strategies”); see also United States v. Caramadre, 892 F. Supp. 2d 397, 401 (D.R.I. 

2012) (allowing in camera submission of clients’ written conflict waivers); United States v. 

Wasson, 2008 WL 11451928, at *2-4 (D.N.M. Feb. 6, 2008) (denying government’s motion to 

compel in camera submission of joint representation agreements).

Further, a defendant does not waive the privileged nature of materials by submitting them

for in camera review in connection with a motion and then discussing them generally in public 

filings before the court. The purpose of an in camera submission is to “protect privileges and 

defendants’ rights.” Friedman, 2018 WL 3456341, at *9 (explaining that the in camera

submission of a joint representation agreement and a client file in connection with a conflict 

motion did not alter the privileged status of those documents). Here, defendants’ submission of 

the In Camera Exhibits to this Court and the brief and general reference to those agreements in 

Case 2:18-cr-00422-DJH Document 408 Filed 12/10/18 Page 13 of 15
14

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

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

public submissions does not constitute a privilege waiver.

2

 Defendants submitted the joint 

representation agreements in camera to preserve privileges and did not discuss or disclose the 

specific terms of those agreements. 

CONCLUSION

For the foregoing reasons, defendants respectfully request that the Court deny the 

Government’s Motion. 

RESPECTFULLY SUBMITTED this 10th day of December, 2018, 

/s/ Paul J. Cambria, Jr. 

LIPSITZ GREEN SCIME CAMBRIA LLP

Attorneys for Defendant Michael Lacey

/s/ Thomas Henry Bienert, Jr.

BIENERT MILLER & KATZMAN PLC

Attorneys for Defendant James Larkin

 2 Further, even when a party asserts that a joint defense agreement is material to the court’s 

resolution of a motion, courts must be careful to protect against “improper disclosure of the terms 

of the joint defense agreement” to non-signatories. Waller v. Fin. Corp. of Am., 828 F.2d 579, 

583-84 (9th Cir. 1987). 

Case 2:18-cr-00422-DJH Document 408 Filed 12/10/18 Page 14 of 15
15

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

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

On December 10, 2018, 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

Following CM/ECF registrants:

Kevin Rapp, kevin.rapp@usdoj.gov

Reginald Jones, reginald.jones4@usdoj.gov 

Peter Kozinets, peter.kozinets@usdoj.gov

John Kucera, john.kucera@usdoj.gov 

Margaret Perlmeter, margaret.perlmeter@usdoj.gov 

Patrick Reid, Patrick.Reid@usdoj.gov 

Andrew Stone, andrew.stone@usdoj.gov

Amanda Wick, Amanda.Wick@usdoj.gov

Case 2:18-cr-00422-DJH Document 408 Filed 12/10/18 Page 15 of 15