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Paul J. Cambria, Jr. (NY Bar No. 15873 admitted pro hac vice)

pcambria@lglaw.com

Erin 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

Counsel for Defendant Michael Lacey

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

tbienert@bmkattorneys.com

Kenneth M. Miller (Cal. Bar No. 151874, admitted pro hac vice)

kmiller@bmkattorneys.com

Anthony R. Bisconti (Cal. Bar No. 269230, admitted pro hac vice)

tbisconti@bmkattorneys.com

BIENERT, MILLER & KATZMAN, PLC

903 Calle Amanecer, Suite 350

San Clemente, California 92673

Telephone: (949) 369-3700

Facsimile: (949) 369-3701

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. 18-CR-00422-PHX-SPL (BSB)

OPPOSITION TO UNITED STATES’ 

MOTION TO RESOLVE PRIVILEGE 

ISSUES AND CROSS-MOTION TO 

OBTAIN DISCOVERY AND ADDRESS 

PRIVILEGE ISSUES 

Oral argument requested

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TABLE OF CONTENTS

I. INTRODUCTION.................................................................................................. 1

II. BACKGROUND.................................................................................................... 3

A. Relationships of VVMH, Backpage.com, LLC, and Other Parties. ................. 3

B. Counsel Retained by VVMH to Address Backpage Matters Through 

April 2015. ........................................................................................................ 4

C. The Parties’ Joint Representation and Joint Defense Agreements After 

Ferrer Purchased Backpage.com in April 2015. ............................................... 5

D. Ferrer’s Guilty Pleas and Privilege Waivers..................................................... 9

E. The Government’s Search Warrants and Subpoenas Seizing Millions of 

Documents. ..................................................................................................... 10

F. Defendants’ Objections to the Government’s Review of Privileged 

Materials and Request for Discovery.............................................................. 12

G. Judge Campbell’s Order Requiring Production of Documents Provided 

to Public Relations Consultants. ..................................................................... 13

H. J.S. v. Village Voice Media Holdings, LLC and the Ruling Relating to 

Privilege in that Case. ..................................................................................... 14

III. ARGUMENT........................................................................................................ 15

A. Ferrer Cannot Waive Privileges He Does Not Hold Or That Are Shared 

Jointly By Other Parties. ................................................................................. 15

B. Judge Campbell’s Ruling Provides No Basis to Impose a Blanket 

Waiver of Privileges........................................................................................ 18

C. The J.S. Ruling Does Not Establish Any Privilege Waiver Applicable 

Here................................................................................................................. 19

D. Use of a “Taint Team” Is Improper and Prejudicial. ...................................... 20

E. The Court Should Order Discovery to Consider Privilege Issues and 

Breaches That May Have Occurred................................................................ 23

IV. CONCLUSION .................................................................................................... 24

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TABLE OF AUTHORITIES

Page(s)

Federal Cases

Backpage.com, LLC v. Cooper,

939 F. Supp. 2d 805 (M.D. Tenn. 2013).......................................................................4

Backpage.com, LLC v. Dart,

807 F.3d 229 (7th Cir. 2015), cert. denied, 137 S. Ct. 46 (2016).................................6

Backpage.com, LLC v. Hawley,

No. 17-CV-1951 (E.D. Mo.).........................................................................................6

Backpage.com, LLC v. Hoffman,

2013 WL 4502097 (D.N.J. Aug. 20, 2013)...................................................................4

Backpage.com, LLC v. Lynch,

216 F. Supp. 3d 96 (D.D.C. 2016)..........................................................................7, 14

Backpage.com, LLC v. McKenna,

881 F. Supp. 2d 1262 (W.D. Wash. 2012)....................................................................4

Bittaker v. Woodford,

331 F.3d 715 (9th Cir. 2003).................................................................................19, 20

Branzburg v. Hayes,

408 U.S. 665 (1972)....................................................................................................13

Commodity Futures Trading Comm’n v. Weintraub,

471 U.S. 343 (1985)....................................................................................................15

Dart v. Craigslist, Inc.,

665 F. Supp. 2d 961 (N.D. Ill. 2009) ............................................................................4

Doe ex rel. Roe v. Backpage.com, LLC,

104 F. Supp. 3d 149 (D. Mass. 2015), aff’d sub nom., Jane Doe No. 1 

v. Backpage.com, LLC, 817 F.3d 12 (1st Cir. 2016), cert. denied, 137 

S. Ct. 622 (2017).......................................................................................................5, 6

Glidden Co. v. Jandernoa,

173 F.R.D. 459 (W.D. Mich. 1997)............................................................................16

Hernandez v. Tanninen,

604 F.3d 1095 (9th Cir. 2010)...............................................................................15, 19

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In re Grand Jury Subpoenas,

902 F.2d 244 (4th Cir. 1990).......................................................................................17

In re Grand Jury Subpoenas to Backpage.com, LLC and Village Voice 

Media Holdings, LLC, No. GJ12-172RAJ (W.D. Wash. Jan. 17, 2013)......................5

In re Teleglobe Commc’ns Corp.,

493 F.3d 345 (3d Cir. 2007)........................................................................................17

In Roosevelt Irrigation Dist. v. Salt River Project Agric. Improvement & 

Power Dist., 810 F. Supp. 2d 929 (D. Ariz. 2011) .......................................................8

John Morrell & Co. v. Local Union 304A,

913 F.2d 544 (8th Cir. 1990).......................................................................................17

M.A. ex rel. P.K. v. Village Voice Media Holdings, LLC,

809 F. Supp. 2d 1041 (E.D. Mo. 2011)...................................................................4, 14

Magnetar Tech. Corp. v. Six Flags Theme Park Inc.,

886 F. Supp. 2d 466 (D. Del. 2012)............................................................................18

Newsome v. Lawson,

286 F. Supp. 3d 657 (D. Del. 2017)..............................................................................9

Polycast Tech. Corp. v. Uniroyal, Inc.,

125 F.R.D. 47 (S.D.N.Y.1989) ...................................................................................16

Senate Permanent Subcomm. on Investigations v. Ferrer,

No. 1:16-mc-00621-RMC (D.D.C.)..............................................................................6

United States v. BDO Seidman, LLP,

492 F.3d 806 (7th Cir. 2007).......................................................................................17

United States v. Ferrer,

No. CR 18-464-PHX-DJH (Doc. 7)..............................................................................9

United States v. Gonzalez,

669 F.3d 974 (9th Cir. 2012).......................................................................................17

United States v. Graf,

610 F.3d 1148 (9th Cir. 2010)...............................................................................16, 18

United States v. Neill,

952 F. Supp. 834 (D.D.C. 1997) .................................................................................23

United States v. Pedersen,

2014 WL 3871197 (D. Or. 2014)................................................................................21

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United States v. Renzi,

722 F. Supp. 2d 1100 (D. Ariz. 2010).........................................................................21

Upjohn Co. v. United States,

449 U.S. 383 (1981)....................................................................................................15

State Cases

J.S. v. Village Voice Media Holdings, LLC,

No. 12-2-11362-4 (Pierce Cty. Wash. Super. Ct.) .....................................6, 14, 19, 20

People v. Ferrer,

No. 16FE019224, 2016 WL 72373505 (Cal. Super. Ct. Dec. 9, 2016)........................7

People v. Ferrer,

No. 16FE024013 (Cal. Super. Ct. Aug. 23, 2017)........................................................7

Squealer Feeds v. Pickering,

530 N.W.2d 678 (Iowa 1995) .....................................................................................20

Federal Statutes

18 U.S.C. § 371...................................................................................................................9

18 U.S.C. § 1591.............................................................................................................5, 7

18 U.S.C. § 1595.................................................................................................................4

18 U.S.C. § 1952...............................................................................................................13

18 U.S.C. § 1956(h)............................................................................................................9

State Statutes

Cal. Penal Code § 266h ......................................................................................................7

Cal. Pen. Code §§ 1546-1546.4........................................................................................11

Other Authorities

Loren E. Weiss & Gregory S. Osborne, Taint Teams and the AttorneyClient Privilege, American Bar Association (Dec. 2015)...........................................21

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I. INTRODUCTION

The government’s Motion to Resolve Attorney-Client Privilege Issues (Doc. 195; 

“Mot.”) asks the Court to issue a blanket ruling that the attorney-client privilege 

effectively does not apply in this case, so as to allow the government carte blanche to

review tens of thousands of attorney-client communications in connection with its 

prosecution of James Larkin, Michael Lacey, and five other Defendants. More 

specifically, the government asks the Court to void virtually all privileges that Messrs. 

Larkin and Lacey could assert, while allowing Carl Ferrer—the CEO of Backpage.com, 

LLC who pleaded guilty and is now cooperating with the government—to continue to 

assert privileges as he selectively chooses. 

Similar to its Motion to Disqualify Counsel (Doc. 118; “DQ Mot.”), the 

government confuses the relationships of the parties over time—referring to all entities 

ever associated with Backpage.com as “Backpage.” See, e.g., Mot. at 1. The 

government also disregards which parties retained counsel and held privileges, as well 

as the parties’ express agreements about joint representation, joint defense, and sharing 

and preserving attorney-client privilege and work product protections. 

From its formation in 2004 through April 2015, Backpage.com, LLC1 was a 

subsidiary of Village Voice Media Holdings, LLC (“VVMH”), which was owned, 

through other companies, by Messrs. Larkin and Lacey. In this period, VVMH retained 

counsel and Ferrer was an employee who worked with counsel as a corporate 

representative. As such, neither he nor Backpage.com, LLC controlled the privilege for 

legal representation relating to Backpage.com, and he has no basis to claim that Davis 

Wright Tremaine LLP (“DWT”) or any other counsel representing the companies 

through April 2015 were his “personal” counsel. VVMH and its parent company 

 

1 In this brief, “Backpage.com” refers to the website and Backpage.com, LLC, the 

company that operated the site.

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remain in existence (with different names), and the controlling interests and rights of 

the companies are still held by Larkin and Lacey.2

After Backpage.com was sold to Mr. Ferrer in April 2015 (through various 

corporate entities), he, Larkin, Lacey, and their respective companies entered into 

agreements providing that they would be represented jointly and would share 

privileges, while precluding disclosure of attorney-client communications or other 

privileged information to third parties. Jointly represented parties cannot waive 

privileges without the consent of all such parties. Thus, Mr. Ferrer was and is 

precluded from unilaterally disclosing any privileged information relating to 

Backpage.com through April 6, 2018, the date when he provided notice that he was 

withdrawing from his agreements for joint representation and joint defense. 

The Court does need to address issues concerning appropriate application and 

protection of attorney-client privileges and work product in this litigation. It would be 

entirely inappropriate for the Court to enter a blanket order, divorced from the facts,

holding that all privileges have been waived.3

 Rather, the government’s submissions 

raise concerns that privileges may not have been respected, given the government’s

misunderstandings (or perhaps having been misled) about the relationships and 

agreements among the parties. 

Accordingly, the Court should first block the government’s review of privileged 

materials through its putative “filter team” to prevent improper disclosure or prejudice. 

The Court should also require the government to provide discovery of all 

communications with Mr. Ferrer, his counsel, or third parties about joint representation 

 

2 VVMH is now known as Camarillo Holdings, LLC, which is, in turn, a subsidiary of 

Medalist Holdings, Inc. (“Medalist,” formerly New Times, Inc.). Messrs. Lacey and 

Larkin own the controlling interests in Medalist, and defendants John Brunst and Scott 

Spear hold small interests.

3 Such an order would be improper, as well, because numerous parties that hold 

privilege rights—notably Medalist and its subsidiaries—are not before the Court in this 

action.

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and attorney-client communications or work product. After such disclosures, the Court 

should allow further briefing regarding privileges and appropriate remedies, to the 

extent that privileges have been breached.

II. BACKGROUND

A. Relationships of VVMH, Backpage.com, LLC, and Other Parties.

The Court cannot assess the attorney-client privilege issues related to 

Backpage.com without understanding the various entities and individuals involved with 

the website over its 14-year existence, and their respective interests and roles over 

time—all of which the government fails to mention.

The Backpage.com website was launched in 2004 by New Times, Inc. (“NTI”), 

the parent company of the Phoenix New Times and a dozen other weekly newspapers. 

NTI was founded by Mr. Lacey (as chief editor) and Mr. Larkin (as publisher). Mr. 

Ferrer had been the classified advertising manager for NTI’s Dallas paper, and he was 

tapped to lead the development and operations of the website. Backpage.com, LLC 

was formed as a subsidiary of NTI in 2004. 

In 2005, NTI acquired Village Voice Media and its newspapers and took on the 

Village Voice name. From that time to April 22, 2015, Backpage.com, LLC was a 

subsidiary of VVMH, and Mr. Ferrer was an employee, serving as a vice president of 

Backpage.com and later as its CEO. Messrs. Larkin and Lacey still retain control of 

VVMH today (after a name change).4

 

On April 22, 2015, VVMH sold Backpage.com, LLC and the website to a group 

of companies owned and controlled by Ferrer. This was a self-financed transaction, 

with companies held by Larkin and Lacey acting as lenders (and retaining security 

interests for payments), and Mr. Ferrer and his companies assuming all responsibilities 

 

4 VVMH sold its newspapers to Voice Media Group, Inc. (a company made up of 

several longtime executives of the papers) in 2013, and changed its name at that time to 

Camarillo Holdings, LLC. For ease of reference, VVMH/Camarillo is referred to here 

as “VVMH.”

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for operation of the website. By this time, Backpage.com had been targeted by 

government authorities and others, resulting in a number of lawsuits, and the parties 

agreed that they would work together jointly in retaining counsel, asserting positions, 

and protecting privileged information (discussed below).

B. Counsel Retained by VVMH to Address Backpage Matters Through 

April 2015.

Beginning in 2008, public officials and others launched attacks on online 

classified ad websites for publishing adult-oriented ads, first targeting Craigslist and 

then Backpage.com. For example, the Cook County Sheriff brought suit alleging that 

Craigslist facilitated prostitution and sex trafficking by allowing escort ads on its site, 

charges that an Illinois U.S. district court summarily dismissed. Dart v. Craigslist, Inc., 

665 F. Supp. 2d 961, 962-63, 967-68 (N.D. Ill. 2009). Numerous state attorneys 

general also publicly demanded that Craigslist shut down its adult category, and when 

Craigslist succumbed to this pressure in September 2010, the AGs turned their sights to 

Backpage.com, demanding that it do the same. VVMH retained counsel to address 

these demands and accusations, including SNR Denton (now Dentons), Kasowitz 

Benson Torres LLP, and others. 

VVMH hired the firm of Thompson Coburn LLP to defend a civil action, M.A. 

ex rel. P.K. v. Village Voice Media Holdings, LLC, 809 F. Supp. 2d 1041, 1053-54 

(E.D. Mo. 2011), in which the court rejected all of the plaintiff’s claims seeking to hold 

the company liable for state tort claims and under 18 U.S.C. §§ 1595 and 2255 for 

allegedly aiding or abetting sex trafficking or abuse of minors. 

In 2012, VVMH engaged DWT to bring suit challenging a Washington state 

statute enacted to target Backpage.com by seeking to make the website criminally 

responsible for ads posted by third-party users. DWT also represented VVMH and 

Backpage.com, LLC in two successive cases concerning similar statutes, winning 

injunctions in all three cases: Backpage.com, LLC v. McKenna, 881 F. Supp. 2d 1262 

(W.D. Wash. 2012), Backpage.com, LLC v. Cooper, 939 F. Supp. 2d 805 (M.D. Tenn. 

2013), and Backpage.com, LLC v. Hoffman, 2013 WL 4502097, at *8 (D.N.J. Aug. 20, 

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2013). VVMH also retained DWT in connection with a federal grand jury proceeding in 

the Western District of Washington, In re Grand Jury Subpoenas to Backpage.com, LLC 

and Village Voice Media Holdings, LLC, No. GJ12-172RAJ (W.D. Wash. Jan. 17, 

2013), in which the court quashed subpoenas issued to VVMH and Backpage.com, LLC. 

Also in 2012, VVMH contracted with Elizabeth McDougall to act as general counsel to 

VVMH to advise about issues relating to Backpage.com.5

 

DWT continued to represent VVMH and Backpage.com in other cases, including 

Doe ex rel. Roe v. Backpage.com, LLC, 104 F. Supp. 3d 149 (D. Mass. 2015), aff’d sub 

nom., Jane Doe No. 1 v. Backpage.com, LLC, 817 F.3d 12 (1st Cir. 2016), cert. denied,

137 S. Ct. 622 (2017), where the district court and the First Circuit dismissed plaintiffs’ 

claims and held that Backpage’s actions in publishing third-party ads did not provide a 

basis for claims under 18 U.S.C. § 1591 or Massachusetts criminal trafficking laws. 

Throughout this 2008-2015 period, VVMH engaged and managed all counsel 

defending and prosecuting matters concerning Backpage.com. Mr. Ferrer interacted

with outside counsel as an employee and corporate representative, and he never asked 

(or engaged) DWT or any of the counsel VVMH retained to represent him personally. 

C. The Parties’ Joint Representation and Joint Defense Agreements 

After Ferrer Purchased Backpage.com in April 2015.

As noted, Ferrer purchased the Backpage.com website in April 2015 from 

VVMH.6

 All of the parties involved—i.e., Ferrer and his companies, which bought the 

website (the “Ferrer Parties”), and the entities controlled by Messrs. Larkin and Lacey 

 

5 Ms. McDougall was retained by VVMH as an independent contractor. 

6 This is simplified description for purposes of this brief (not mentioning the various 

corporate entities involved).

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that sold their interests (collectively, “the Medalist Parties”)7—recognized the 

importance of having joint representation for ongoing and potential cases and 

challenges, and they continued to work together to coordinate defense and prosecution 

of cases through joint counsel. 

For example, Perkins Coie LLP continued to represent VVMH and 

Backpage.com, LLC in J.S. v. Village Voice Media Holdings, LLC, No. 12-2-11362-4 

(Pierce Cty. Wash. Super. Ct.), a private civil case (later settled, as discussed below), 

and DWT continued representing VVMH and Backpage.com, LLC in the Doe case in 

Massachusetts (mentioned above). DWT also acted as lead counsel in Backpage.com, 

LLC v. Hawley, No. 17-CV-1951 (E.D. Mo.), challenging a civil investigative demand 

the Missouri AG’s office served in May 2017, and several firms (Akin Gump Strauss 

Hauer & Feld LLP, Paul Hastings LLP, Perkins Coie, and DWT) represented 

Backpage.com in connection with a subpoena issued by the United States Senate 

Permanent Subcommittee on Investigations (“PSI”), Senate Permanent Subcomm. on 

Investigations v. Ferrer, No. 1:16-mc-00621-RMC (D.D.C.). In the latter two cases, 

the subpoenas solely sought records of Backpage.com, although they were nominally 

directed to Mr. Ferrer in his representative capacity as CEO. Counsel entered 

appearances in Ferrer’s name to represent the company. 

DWT also prosecuted Backpage.com, LLC v. Dart, 807 F.3d 229, 231 (7th Cir. 

2015), cert. denied, 137 S. Ct. 46 (2016), in which the Seventh Circuit enjoined the 

Cook County Sheriff’s threats to Visa and MasterCard to terminate use of their cards on 

Backpage.com, holding that the Sheriff’s actions constituted an unconstitutional prior 

 

7 The “Ferrer Parties” are Carl Ferrer and Backpage.com, LLC; Dartmoor Holdings, 

LLC; IC Holdings, LLC; UGC Tech Corp. Group C.V.; Website Technologies, LLC; 

Atlantische Bedrijven, C.V.; Amstel River Holdings, LLC; Lupine Holdings, LLC; 

Kickapoo River Investments, LLC; CF Holdings GP, LLC; and CF Acquisitions, LLC, 

all of which are companies Ferrer owns and controls. The “Medalist Parties” are 

Medalist Holdings, Inc., Leeward Holdings, LLC, Camarillo Holdings, LLC, and their 

shareholders of Medalist, James Larkin and Michael Lacey (the majority owners) and 

John Brunst and Scott Spear (minority owners).

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restraint in violation of the First Amendment. In Backpage.com, LLC v. Lynch, No. 

1:15-2155(RBW) (D.D.C.), DWT also represented the Medalist Parties and the Ferrer 

Parties in challenging a congressional amendment to 18 U.S.C. § 1591—the “SAVE 

Act,” which added “advertising” as a predicate act for sex trafficking—in which the 

government conceded that a website operator such as Backpage.com could not be liable 

absent proof it knew a specific ad was for sex trafficking and participated in a venture to 

bring about the trafficking. See Backpage.com, LLC v. Lynch, 216 F. Supp. 3d 96, 109-

10 (D.D.C. 2016) (Backpage.com faced no credible threat of prosecution given its 

practices). In all of these cases, counsel represented the Ferrer Parties and the Medalist 

Parties jointly, given their common positions and interests. 

No one asserted claims or charges against Ferrer, Larkin, or Lacey personally (or 

any other individual associated with Backpage.com) until October 2016. Then, the 

California Attorney General’s office arrested and jailed Ferrer, Lacey and Larkin,

alleging charges that they had engaged in “pimping” under Cal. Pen. Code § 266h,

because the Backpage.com website published and received payments for escort ads

posted by users. In two rulings, two California state court judges rejected and dismissed 

these charges on demurrer (as well as alleged money laundering claims based on the 

same premise), holding that “charg[ing] money for the placement of advertisements” and 

“[p]roviding a forum for online publishing is a recognized legal purpose” under 

California and federal law. See People v. Ferrer, No. 16FE019224, 2016 WL 

72373505, at *9 (Cal. Super. Ct. Dec. 9, 2016); Order, People v. Ferrer, No. 

16FE024013, at 13 (Cal. Super. Ct. Aug. 23, 2017).

Shortly after the California AG’s office brought charges, Messrs. Ferrer, Larkin 

and Lacey each engaged counsel to represent them personally,8 while agreeing to 

continue to be jointly represented by DWT to address common issues, such as the 

successful demurrers discussed above. The parties entered into agreements to 

 

8 Ferrer retained Nanci Clarence of Clarence Dyer Cohen LLP as his personal counsel. 

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memorialize the joint representation and agreeing to continue sharing confidential and 

privileged information among themselves, while precluding disclosure to third parties. 

More specifically, Ferrer, Larkin and Lacey entered into an engagement agreement with

DWT; a Common Interest and Litigation Management Agreement (on behalf of 

themselves and their respective companies); and a joint defense agreement (“JDA”) with

all Defendants in this action and their respective counsel. 

Defendants previously explained and provided the joint representation 

agreements to the Court in connection with the governments’ motion to disqualify 

counsel. See Opp. to DQ Mot. at 6-8 (Doc. 180); Grant Decl. Exs. A, B, C (in camera).9

 

Yet, when the government filed its “privilege issues” motion a week later, it completely 

disregarded the agreements. To summarize: The joint representation agreements 

recognized that Messrs. Ferrer, Lacey and Larkin (and all the Ferrer Parties and Medalist 

Parties) shared interests in defending claims related to Backpage.com. They 

memorialized the parties’ prior joint representation arrangements, so that all dealings 

and communications from April 22, 2015 and afterward were encompassed and 

protected by the parties’ joint privilege undertakings. They spelled out the parties’ 

undertakings to retain joint counsel, coordinate joint defenses, share confidential 

information, and waive potential conflicts of interest as to any claims—civil or criminal, 

whether past, present or future. Grant Decl. ¶ 16. Ferrer and the other parties agreed 

they would share privileged information with one another and with joint counsel, and 

would maintain and protect all privileges and confidentiality as to third parties. Id. ¶ 18. 

The agreements acknowledged that the parties’ interests could diverge in the future, and 

so allowed that a party could withdraw from the joint representation but could not 

unilaterally waive privileges or seek to disqualify counsel from continuing to represent 

 

9 These materials were filed in camera because the parties’ agreements about joint 

representation and the underlying arrangements and rationales are privileged 

communications in their own right. See In Roosevelt Irrigation Dist. v. Salt River 

Project Agric. Improvement & Power Dist., 810 F. Supp. 2d 929 (D. Ariz. 2011). 

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other parties. See id. ¶¶ 19, 24. Mr. Ferrer entered into the joint representation 

agreements with the advice of and opportunity to consult with his own personal counsel

and corporate counsel, including Ms. Clarence. Id. ¶¶ 7, 10, 11, 21.

D. Ferrer’s Guilty Pleas and Privilege Waivers.

On April 5, 2018, Ferrer mailed notice that he was withdrawing from the JDA 

(the notice was received by Mr. Padilla’s counsel on April 9) and a day later gave notice 

to DWT and others that he was withdrawing from the joint representation agreements. 

Grant Decl. ¶¶ 27, 28 & Exs. D, E. Contrary to his commitments in the JDA, Ferrer did 

not provide any notice or withdraw from the JDA when he began negotiating with the 

government. 

Also on April 5, Ferrer pleaded guilty to one count of conspiracy (18 U.S.C. 

§ 371) and entered a plea on behalf of Backpage.com, LLC (and other Ferrer Parties) to 

one count of money laundering (18 U.S.C. § 1956(h)), committing to cooperate with the 

government in its prosecution of Lacey, Larkin and others in exchange for a maximum 

five-year sentence. See United States v. Ferrer, No. CR 18-464-PHX-DJH (Doc. 7). 

The next day the government released an indictment against Larkin and Lacey and the 

five other Defendants, charging various crimes under the Travel Act and federal money 

laundering statutes (18 U.S.C. §§ 371, 1952, 1956, 1957). 

On April 25, 2018, the government moved to disqualify DWT from representing 

Larkin and Lacey in this action. DQ Mot. (Doc. 118). The focus of the government’s 

motion is that Ferrer’s interests supposedly would be harmed by use or disclosure of 

privileged information he had previously shared with counsel.

10 See id. at 9-14. 

 

10 The government’s motion ignores the presumption in a joint representation that all 

communications will be shared with all joint clients, such that no individual client will 

have confidences to be protected from other members of the group. See Newsome v. 

Lawson, 286 F. Supp. 3d 657, 664 (D. Del. 2017) (“A joint client ‘cannot reasonably 

expect that the [joint attorney] will keep information from other [joint clients].’ The only 

people joint clients can reasonably expect to withhold privileged communications from 

are third parties or strangers to the joint representation.”).

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However, after the government filed its motion, Defendants learned that Ferrer had 

entered into agreements with the government waiving privilege protections for 

communications with any counsel who had represented him in “his personal or official 

capacity” (except Ms. Clarence and her firm). See Grant Decl. Exs. J, K; DQ Opp. at 

9-10 (noting the government failed to disclose these waivers until Defendants persisted 

in their demands for information).11 Of course, Ferrer’s concessions to the government

cannot waive privileges held by others or privileges he held jointly with the Medalist 

Parties regarding information he previously agreed not to disclose to third parties. 

E. The Government’s Search Warrants and Subpoenas Seizing Millions 

of Documents.

The government has obtained over 10 million pages of documents through grand 

jury subpoenas and search warrants. See Ex. 1, attached hereto (May 24, 2018 letter 

describing government’s “initial disclosure” of documents). This included 2.1 million 

pages of documents produced by Backpage.com in response to a grand jury subpoena 

(No. 16-04-108), which were accompanied by a privilege log listing approximately 

7,000 withheld documents and identifying over 75 attorneys that had represented 

VVMH, Backpage.com, LLC, and related parties. 

The government’s motion focuses on two other document collections, containing 

millions of emails seized through two search warrants. Mot. at 3. The first warrant was 

issued in July 2016 to Google for emails from the account “carl.ferrer@backpage.com”

(resulting in a collection of 574,000 pages of documents).12 See Mot. Ex. A. The 

second warrant, issued in April 2017, was directed to the California Attorney General’s 

 

11 For example, Ferrer’s Proffer/Interview Agreement states: “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 any communications with 

any attorney or law firm that represented Backpage.com or any related entity. This 

waiver does not apply to Mr. Ferrer’s current attorneys, Nanci Clarence and Jonathan 

Baum and anyone working on their behalf.” Grant Decl. Ex. K, at 5.

12 Like many companies, Backpage.com, LLC and VVMH contracted with Google to 

provide email services through its Gmail platform. 

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office (“AGO”), Mot. Ex. B, which has coordinated with the federal authorities for 

several years in investigating and pursuing charges relating to Backpage.com (resulting 

in the criminal complaints and the numerous charges dismissed on demurrer, as 

discussed above), and had seized millions of emails through five warrants issued to 

Google. The federal warrant directed the AGO to produce emails for a six-year period 

from nine different accounts “@backpage.com” and “@villagevoicemedia.com” 

(totaling 1.7 million pages). See Ex. 1; Mot. Ex. B. In the California case, Defendants 

have moved to invalidate the AGO’s warrants under the Fourth Amendment and for 

violations of California’s Electronic Communications Privacy Act, Cal. Pen. Code 

§§ 1546-1546.4. 

Additionally, in that case Defendants provided the AGO a list of 52 attorneys 

who had represented parties related to Backpage.com, see Ex. 2, attached (October 18, 

2016 letter), and the AGO agreed not to review any documents containing attorney 

names but instead to provide them to defendants’ counsel for review. The AGO

segregated over 64,000 documents containing attorney names. Defendants have 

invested substantial time and expense in conducting a privilege review of these 

materials, which encompass the same documents the federal government has obtained 

and seeks to review here.

13

In connection with its warrant applications in this case, the federal government 

did not mention the privilege review procedure agreed upon in California. The 

government also did not mention to issuing magistrates the scores of attorneys who had 

worked with VVMH, Backpage.com, LLC, and related parties over the years, but 

instead proposed a “filter team” protocol segregating only communications to or from 

Ms. McDougall. In its motion now, the government says its “filter team” has segregated 

 

13 The privilege review in the California case has not been completed, in large part 

because the federal government has seized essentially all financial accounts and assets of 

Defendants, depriving them of the funds needed to complete this work. 

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documents as to four individual attorneys and two law firms,14 which the government 

incorrectly asserts were all “Backpage” counsel—also incorrectly suggesting that Ferrer 

controlled and could waive the privilege for communications with those attorneys. See

Mot. at 4.15 Based on its narrow parsing, the federal government asserts it has identified

10,733 potentially privileged documents, id., as compared to the 64,000 the California 

AGO found. 

F. Defendants’ Objections to the Government’s Review of Privileged 

Materials and Request for Discovery.

From the first indication that the government was proposing to review seized 

documents through a “filter team,” Defendants objected. Defendants explained that 

Ferrer could not waive privileges held by or jointly with other parties, gave notice that 

Defendants expressly reserve and assert all privilege and work product claims, asserted 

it was improper for the government to disregard the California agreement, and insisted 

that the government cease any review of potentially privileged materials through its 

“filter team” or otherwise. See Ex. 3, attached (letters dated April 26, May 1, May 2, 

May 15, May 23, and June 12, 2018). 

Defendants also asked the government to provide disclosures of communications 

with Ferrer, his counsel or others concerning joint representation, attorney-client 

privilege or waivers, or attempts to allege conflicts or seek disqualification of 

Defendants’ counsel. Id. (letter dated May 1, 2018). Defendants sought this information 

because it bears directly on the government’s motion to disqualify counsel (as well as 

 

14 As discussed above, VVMH and the Backpage parties have been represented by many 

more attorneys and firms, including Akin Gump Strauss Hauer & Feld LLP; Paul 

Hastings LLP; Perkins Coie LLP; SNR Dentons; Kasowitz Benson Torres LLP; Schiff 

Hardin LLP; Thompson Coburn LLP; Prince Lobel Tye LLP; Adams and Reese LLP; 

McCusker, Anselmi, Rosen & Carvelli, P.C.; and others. 

15 For example, Steve Suskin was outside counsel to VVMH, DWT represented VVMH 

and the Medalist and Ferrer Parties jointly, and Rusing Lopez & Lizardi represented the 

Medalist Parties and coordinated with Ferrer and Backpage.com, LLC under the joint 

representation agreements. 

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the present motion). See Defendant Lacey’s Motion for Disclosure at 6-7 (Doc. 202). 

Moreover, while the government maintains that it has not reviewed or had access to the 

joint representation agreements, this assertion is at least subject to question. For 

example, Ferrer and his counsel have sent unsolicited letters to courts in numerous civil 

cases misstating the agreements in an effort to interfere with DWT’s continued 

representation of the Medalist Parties in those cases, see Ex. 4, attached (April 26, 2018 

letter from N. Clarence to Hon. Leo Sorokin, U.S. District Court for the District of 

Massachusetts), and by all appearances have coordinated with government in doing so. 

The government has also provided in this case a declaration from Mr. Ferrer in which he 

discusses his dealings and communications with counsel during periods when privileges 

were held by VVMH and also when privileges were jointly held with the Medalist 

Parties. See Ferrer Decl. ¶¶ 9-22 (Doc. 192-6).

The government has refused to provide discovery. Its motion indicates that the 

government has “temporarily stopped” its review, albeit after reading some 6,500 likely

privileged documents. Mot. at 4. 

G. Judge Campbell’s Order Requiring Production of Documents 

Provided to Public Relations Consultants.

The government notes two rulings of Judge Campbell concerning GJ Subpoena 

No. 16-04-108, which sought production of documents Backpage.com had previously 

produced to the PSI. Mot. at 6-8. Judge Campbell enforced the subpoena, but did not 

(as the government tries to suggest) issue any sort of imprimatur that the government’s 

prosecution is proper or raises no First Amendment concerns. Rather, the Court held 

that, under Branzburg v. Hayes, 408 U.S. 665 (1972), a grand jury subpoena is invalid 

only upon a showing that the government is proceeding in bad faith.16 

 

16 The government asserts that “Judge Campbell also confirmed that 18 U.S.C. § 1952 

... criminalize[s] the knowing publication of an advertisement for illegal prostitution” 

and that Backpage’s counsel conceded this point. Mot. at 7. Counsel actually said that 

if a website knew of and intended to cause a specific act of sex trafficking and 

participated in a venture, conspiring with users of the website to bring it about, that 

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After Backpage.com complied with the Court’s order, the government brought a 

motion challenging documents that had been withheld on grounds of privilege. More 

specifically, the government challenged privilege claims regarding communications 

between counsel and public relations consultants, and communications with Hemanshu 

Nigam, an attorney and former federal prosecutor who provided expertise and advice 

concerning the system for the review and moderation of user-submitted ads. Judge 

Campbell ruled that all communications with Mr. Nigam were privileged and properly 

withheld, but concluded that the challenged communications with PR consultants 

should be produced. See Mot. Ex. H. Judge Campbell ordered production of a small 

collection of specific documents exchanged with the PR consultants. See id. at 14. He 

did not rule (or suggest) that privileges as to any other materials or communications had 

been waived. 

H. J.S. v. Village Voice Media Holdings, LLC and the Ruling Relating to 

Privilege in that Case.

The government also points to a ruling from a Washington State superior court 

in a case brought by three individual plaintiffs who claimed they were victimized 

because pimps and others posted ads on Backpage.com, J.S. v. Village Voice Media 

Holdings, LLC; see Mot. Ex. K. There, the superior court held that the defendants in 

that case had put privileged communications with Ms. McDougall at issue by 

submitting a declaration from her supporting a summary judgment motion and by virtue 

of her deposition testimony, personally and as a 30(b)(6) witness. Id. at 2. The court 

ordered that plaintiffs would be entitled to continue Ms. McDougall’s deposition to 

inquire about attorney-client communications allegedly put at issue. Id. at 4. However, 

the deposition never happened, as shortly thereafter the parties entered into a 

 

might be a basis for prosecution. See Mot. Ex. D at 38-41. This is, incidentally, the 

same standard the DOJ itself has said is required under federal law (although the 

government has disregarded the standard in this case). See Lynch, 216 F. Supp. 3d at 96.

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confidential settlement of the case, before any privileged communications were 

disclosed. 

III. ARGUMENT

A. Ferrer Cannot Waive Privileges He Does Not Hold Or That Are 

Shared Jointly By Other Parties.

The government offers a grossly simplistic view that Ferrer, as CEO of 

Backpage.com, LLC can waive all privileges at any time related in any way to the 

website or its operations.17 In fact and in law, Ferrer cannot waive privileges held by 

other parties or that he and Backpage.com agreed were shared and would be protected 

jointly with the Medalist Parties. 

“The attorney–client privilege is the oldest of the privileges for confidential 

communications known to the common law,” long respected by courts “to encourage 

full and frank communication between attorneys and their clients and thereby promote 

broader public interests in the observance of law and administration of justice.” Upjohn 

Co. v. United States, 449 U.S. 383, 389 (1981). Analysis of the privilege necessarily 

turns on the facts concerning the specific attorney-client relationships and 

communications at issue. See id. at 396-97 (application of the privilege must be 

determined on a “case-by-case” basis). An improper ruling finding a blanket waiver of 

privileges is “particularly injurious” and constitutes clear error. Hernandez v. Tanninen, 

604 F.3d 1095, 1101-02 (9th Cir. 2010) (granting mandamus relief where district court 

ordered blanket disclosure of privileged communications). 

The government cites one case as supposed support for its claim that Ferrer 

controls all privileges in this case: Commodity Futures Trading Comm’n v. Weintraub, 

471 U.S. 343, 349 (1985), see Mot. at 10, which held that “when control of a corporation 

passes to new management, the authority to assert and waive the corporation’s attorneyclient privilege passes as well.” That much is true, but it ignores the central issues here 

 

17 The government’s motion never mentions the work product doctrine and so 

presumably is not seeking an order that such protections have been waived. 

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concerning the relationship of Backpage.com, LLC and VVMH, the privileges they held,

and their agreements to jointly share and protect privileges. 

First, as discussed above, prior to the April 22, 2015 sale, Backpage.com, LLC 

was a subsidiary of VVMH, which chose, retained, and directed outside counsel. Ferrer 

worked with counsel as well, but he did so as an employee and a corporate 

representative. In this regard, the government’s citation to United States v. Graf, 610 

F.3d 1148 (9th Cir. 2010), is telling. See Mot. at 10. Graf sets forth a five-factor 

analysis to determine if corporate counsel represented an employee personally, including 

whether the employee specifically asked for representation as to his personal interests 

(and not in his representative capacity). 610 F.3d at 1161. The government attempts to 

confuse the parties’ relationships and Ferrer’s role before 2016, see, e.g., Ferrer Decl. 

¶¶ 11-16 (referring to dealings before 2015 and stating: “My understanding has been 

that DWT represented me personally”), but offers no showing that Ferrer ever consulted 

DWT or any joint corporate counsel about personal representation or potential 

liability—that simply did not happen.18 

For the period before the 2015 sale, it is clear that Backpage.com (as a subsidiary) 

and Ferrer (as a corporate representative) had no separate authority to control or waive 

privileges. It well established “that the parent and subsidiary share a community of 

interest, such that the parent (as well as the subsidiary) is the ‘client’ for purposes of the 

attorney-client privilege.” Glidden Co. v. Jandernoa, 173 F.R.D. 459, 472–73 (W.D. 

Mich. 1997). A subsidiary and a parent are at least joint clients, each of which has an 

interest in the privileged communications. Id.; see also Polycast Tech. Corp. v. 

 

18 The government’s reliance on Graf is also confusing because it contends that case 

demonstrates that “individual corporate employees (such as the defendants in this case) 

cannot contest the disclosure of their previously-privileged communications.” Mot. at 

10. But the Defendants—Messrs. Larkin, Lacey, Spear and Brunst—are not and were 

never “corporate employees” of Backpage.com, they are the principals and owners of 

the Medalist Parties that jointly held privileges before the sale and were parties to the 

joint representation agreements after the sale. And the Medalist Parties have not waived 

the privilege.

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Uniroyal, Inc., 125 F.R.D. 47, 49 (S.D.N.Y.1989). Thus, in 2015 Ferrer could not have 

decided unilaterally to waive privilege protections, and his purchase of Backpage.com in 

April of that year did not vest him with authority he did not have before. 

Ferrer also has no unilateral rights to waive attorney-client privilege for 

communications after the April 2015 sale. The Ferrer Parties and the Medalist Parties

collectively recognized that they shared common interests, decided to continue being 

jointly represented, and agreed to jointly share and protect privileged communications. 

See Grant Decl. Ex. A, B.19 Here again, the law is well established that, where parties 

agree to joint representation or enter into a joint defense agreement, one party cannot 

waive privileges “without the consent of all parties who share the privilege.” In re 

Grand Jury Subpoenas, 902 F.2d 244, 248 (4th Cir. 1990) (“we hold that all documents 

... are subject to a joint defense privilege that Subsidiary may not waive unilaterally”); 

accord United States v. BDO Seidman, LLP, 492 F.3d 806, 817 (7th Cir. 2007) (“the 

privileged status of communications falling within the common interest doctrine cannot 

be waived without the consent of all parties”); In re Teleglobe Commc’ns Corp., 493 

F.3d 345, 363 (3d Cir. 2007) (“When co-clients and their common attorneys 

communicate with one another, those communications are ‘in confidence’ for privilege 

purposes. Hence, the privilege protects those communications from compelled 

disclosure to persons outside the joint representation. [W]aiving the joint-client 

privilege requires the consent of all parties.”); John Morrell & Co. v. Local Union 304A, 

 

19 The government claims elsewhere that the parties did not agree to joint representation 

and shared privileges until December 2016, when the parties memorialized the 

agreements. See Reply on DQ Mot. at 5 (Doc. 193). The government’s argument is 

baseless. Shared privileges are inherent in joint representation, and courts have long 

recognized oral joint defense agreements are fully enforceable, United States v. 

Gonzalez, 669 F.3d 974, 979 (9th Cir. 2012) (“it is clear that no written agreement is 

required, and that a JDA may be implied from conduct and situation, such as attorneys 

exchanging confidential communications from clients who are or potentially may be 

codefendants or have common interests in litigation”). More to the point, both the 

Common Interest Agreement and the JDA stated that they confirmed prior agreements 

and arrangements already in effect. Grant Decl. Exs. B, C.

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913 F.2d 544, 556 (8th Cir. 1990) (“It is fundamental that the joint defense privilege 

cannot be waived without the consent of all parties to the defense.”); Magnetar Tech. 

Corp. v. Six Flags Theme Park Inc., 886 F. Supp. 2d 466, 479 (D. Del. 2012) (a “joint 

privilege prevents ... communications from compelled disclosure to persons outside the 

joint representation [without] the consent of all joint clients”). 

By executing the joint representation agreements, Ferrer expressly agreed that he 

(and Backpage.com, LLC and all Ferrer Parties) would preserve all privileged 

information from disclosure to third parties. Here too, Ferrer expressly disclaimed any 

rights to waive attorney-client privilege unilaterally. 

Ferrer is entitled to waive privileges as to his communications with counsel after 

the date when he withdrew from the joint representation agreements and the JDA, i.e., 

after April 6, 2018. He is also entitled to waive privilege protections as to his personal 

counsel, Ms. Clarence and her firm, although he asserts he has not done so. He has no 

authority otherwise to waive privileges unilaterally as to VVMH or any other privileges 

held by the Medalist Parties or any other jointly represented parties. 

B. Judge Campbell’s Ruling Provides No Basis to Impose a Blanket 

Waiver of Privileges.

The government also bases its blanket waiver claim on Judge Campbell’s ruling 

requiring production of a group of documents reflecting communications among 

attorneys and public relations consultants representing VVMH and Backpage.com, LLC

in 2010-2011. Mot. at 12-13. In fact, Judge Campbell ruled only that these specific 

documents had to be produced, as he disagreed with Backpage.com’s interpretation of 

the case law that consultants hired by counsel to assist in addressing legal issues fall 

within the scope of the attorney-client privilege as “functional equivalents” of 

employees. See Mot. Ex. H (Doc. 195-8); see also Graf, 610 F.3d at 1159. 

The government now tries to stretch this ruling into a broad subject-matter waiver 

covering “an array of different ‘subjects,’ including how to moderate and review ads ... 

and whether/how to acknowledge the prevalence of prostitution ads on the Backpage 

website.” Mot. at 12. This is a mischaracterization of the two documents the 

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government cites. The PR consultants provided input about messaging and 

communications; they had no role in establishing moderation and review practices and 

certainly did not say there was a “prevalence of prostitution ads” on the website. The 

government’s view of subject-matter waiver is absurdly broad—tantamount to saying 

that, because the PR consultants communicated about the Backpage.com website, all 

attorney-client privileged communications relating to the website were thus waived. 

See, e.g., Hernandez, 604 F.3d at 1101-02 (holding that district court committed clear 

error in ordering production of all documents withheld as privileged where waiver by 

attorney and client concerned only communications with a given individual). 

Judge Campbell’s ruling applied only to specific communications with PR 

consultants, and all such communications have since been produced. That Judge 

Campbell did not invalidate privilege claims generally is made clear by the other half of 

his ruling, upholding privilege claims as to some 350 documents reflecting 

communications with Mr. Nigam, the attorney and former AUSA who advised 

concerning Backpage.com’s review and moderation procedures. Mot. Ex. K at 12-13. 

The government cannot morph Judge Campbell’s ruling into a blanket privilege waiver.

C. The J.S. Ruling Does Not Establish Any Privilege Waiver Applicable 

Here.

The Washington superior court’s ruling in the J.S. case provides no basis for the 

government’s assertion that all privileges relating to Backpage.com should be deemed 

waived. First, as the government acknowledges, the issue in J.S. was not an express

waiver of privilege (i.e. the sharing of privileged information with third parties), but an 

implied waiver, allegedly by putting privileged communications “at issue” in that case. 

“[W]aivers by implication differ materially from the more traditional express waivers” 

as implied waivers are designed to give the “opponent a fair opportunity to defend 

against” claims or defenses implicating privileged communications. Bittaker v. 

Woodford, 331 F.3d 715, 719, 720 (9th Cir. 2003). Because implied waivers are 

premised on a “fairness principle,” the waiver must be “no broader than needed to 

ensure the fairness of the proceedings before it.” Id. As such, even after an at-issue 

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waiver, “the holder of the privilege may preserve the confidentiality of the privileged 

communications by choosing to abandon the claim that gives rise to the waiver 

condition.” Id. at 721. 

In J.S., the parties settled the litigation shortly after the Court’s ruling and before 

any privileged communications were disclosed. The settlement eliminated the alleged 

waiver condition and “preserve[d] the confidentiality of the privileged 

communications.” Id.; accord Squealer Feeds v. Pickering, 530 N.W.2d 678, 685 (Iowa 

1995) (“the waiver of a privileged communication may be withdrawn at any time before 

it has been acted on, where no advantage has accrued to either litigant on account 

thereof”) (quoting 81 Am.Jur.2d Witnesses § 294, at 281 (1992)). The government has 

no basis to claim that a waiver that did not occur in the J.S. case entitles it to transgress 

privileges now. 

D. Use of a “Taint Team” Is Improper and Prejudicial.

The government takes as a given that its review of privileged documents through 

a “filter team” is permissible, whatever may be the procedures or processes employed. 

See, e.g., Mot. at 4. The only relief the government seeks by its motion is an order 

holding that “Backpage’s [sic] corporate attorney-client privilege has been waived” so 

that the “prosecution team may therefore gain access to the emails and other 

communications that were previously withheld by the filter team.” Id. at 13. As 

discussed, there has been no privilege waiver. In any event, Defendants object to the 

government’s review of potentially privileged communications under the circumstances 

and hereby move for an order halting any such review and directing the government to 

set aside all such documents pending discovery and further proceedings to address 

possible violations of the attorney-client privilege and work product protections. 

The government’s use of “taint teams” to substantively review attorney-client 

communications has been criticized by courts and commentators. The practice 

inherently invades the attorney-client privilege and work product protections because it 

does not prevent the government from reviewing privileged documents, it merely 

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

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

Attorney-Client Privilege, American Bar Association (Dec. 2015). These practices have 

been called into question because government agents cannot be expected to just ignore 

material because it is not responsive or contains privileged communications. If agents 

find information they think may help a prosecution, their natural tendency is to try to 

find ways to disclose and use the information. Such “conscious knowledge” can “lead 

investigators to unconsciously alter the course of investigation and prosecution for other 

criminal matters.” Id. at 5. 

As Judge Bury of this Court has written: “[L]iberal use of taint teams should be 

discouraged because they present ‘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 Subpoenas, 454 F.3d 

511, 523 (6th Cir. 2006)).

“[T]he government taint team may have an interest in preserving privilege, 

but it also possesses a conflicting interest in pursuing the investigation, and, 

human, nature being what it is, occasionally some taint team attorneys will 

make mistakes or violate their ethical obligations.”

Id. 

Other courts have been equally critical of the practice, if not more so. “When 

considering the purposes of the attorney-client privilege, it is obvious that no 

governmental entity should intentionally review privileged material without the express 

approval of the court.” United States v. Pedersen, 2014 WL 3871197, at *29 (D. Or. 

2014). “It would be a rare defendant who would feel comfortable speaking openly with 

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

attorney, was reviewing those communications.” Id. Moreover, “taint team” procedures 

should only be used as a last resort. Id. at *31 (“If there is a feasible means to segregate 

privileged material without risk of accidental review and without use of a taint team, 

such means should be employed.”). 

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The government has disclosed little about what its “filter team” has done, but 

what it has said raises serious concerns. The search warrants drafted and submitted by 

the government merely indicated that a review team would be used in some fashion to 

identify “legitimately protected materials,” without any indication of how that would be 

determined. See Mot. Ex. B; see also Mot. Ex. A. While the government knows of 

more than 20 law firms and 75 attorneys who have represented VVMH, Backpage.com 

and related parties, it indicates that its filter team has segregated documents naming just 

four attorneys and two firms. Mot. at 4. Notwithstanding that communications to or 

from attorneys would almost certainly be privileged, the government says it has 

reviewed “approximately 6,500 of the segregated emails.” Id. With electronic imaging 

and computer search technology, it is a straightforward exercise to identify and 

segregate documents containing attorney names, as the California AGO did for the same 

documents the federal government has decided to review. That the AGO segregated 

over 64,000 documents, while the government here says it has found only 10,733 

potentially privileged documents, raises further concerns. It is also troubling why the 

government decided to embark on its “taint team” process when the California AGO—

with which the federal government has been coordinating for several years—had agreed 

that it would not review potentially privileged documents but would provide them to 

defendants for review and preparation of a privilege log. 

The government’s filings on this motion and others (e.g., the Disqualification 

Motion (Doc. 118) and Motion for Disclosure (Doc. 202)) reflect that it fundamentally 

misunderstands relationships between the parties and their agreements and dealings 

concerning joint representation by counsel, joint defenses, and protection of privileges. 

It is impossible to see how agents on the “filter team” could possibly assess privilege 

and work product protections without understanding the actual relationships and 

agreements (or based on misconceptions provided by the prosecution team). Moreover, 

the government’s motion actually acknowledges coordination between its “prosecution 

team” and “filter team,” disclosing that the “‘subjects’ addressed in the communications 

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that have been segregated by the filter team” include “how to moderate and review ads” 

and the alleged “prevalence of prostitution ads.” Mot. at 12. Obviously, the point of 

setting aside potentially privileged documents is to ensure the government’s prosecutors 

do not know the subjects or substance of communications between attorneys and their 

clients. 

In United States v. Neill, 952 F. Supp. 834 (D.D.C. 1997), the court held that “the 

government’s affirmative decision to invoke [taint team] procedures constitutes a per se

intentional intrusion” into the attorney-client relationship. Id. at 840-41.

Where the government chooses to take matters into its own hands rather 

than using the more traditional alternatives of submitting disputed 

documents under seal for in camera review by a neutral and detached 

magistrate or by court-appointed special masters, ... it bears the burden to 

rebut the assumption that tainted material was provided to the prosecution 

team.

Id. at 841 (internal citations omitted). 

The government’s actions here justify thorough consideration of whether it has 

properly protected privileges or has transgressed them. Among other things, Defendants 

request that the Court direct the government to (1) halt its “filter team” review; (2) run 

searches of all documents against a comprehensive list of attorneys who have 

represented VVMH, Backpage.com or related parties and segregate all such materials 

without further review; and (3) provide complete information about processes and any 

review of potentially privileged documents or information that has occurred to date. 

E. The Court Should Order Discovery to Consider Privilege Issues and 

Breaches That May Have Occurred.

The government’s positions and actions demonstrate the need for disclosures 

about its communications with Ferrer, his counsel, or others about privileges, joint 

representation, and/or steps to target attorney-client relationships of Messrs. Lacey, 

Larkin or Medalist Parties. Defendants have requested discovery in connection with the 

Disqualification Motion (Doc. 202), but the government’s positions in the present 

motion underscore this need. 

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The government clearly has already communicated with Ferrer about his dealings 

and communications with counsel, which are protected by privilege. For example, 

Ferrer’s declaration submitted with the government’s reply brief on the Disqualification 

Motion (Doc. 192-6), discusses his communications with DWT and advice provided 

during times when Backpage.com was a subsidiary of VVMH and Ferrer acted as a 

corporate representative, though he attempts to suggest DWT acted as his personal 

lawyer. The government insists that, pursuant to his Proffer Agreement, Mr. Ferrer 

agreed that he would discuss “communications with any attorney or law firm that 

represented Backpage.com, or any related entity” (Doc. 216 at 3), but that itself is a 

violation of privileges held by VVMH and other parties, which Ferrer cannot unilaterally 

waive. To the extent the government avers it has abided by the parties’ joint 

representation and joint defense agreements based on what it may have been told, it 

seems clear the government was not informed accurately. And yet the government has 

refused to provide any discovery, in effect asserting that Defendants should take its word 

that it has not improperly obtained privileged information.

Thus, to address the government’s actions fairly and to have opportunity to 

protect privileges or address possible violations, the Court should require the 

government to provide complete disclosures. 

IV. CONCLUSION

Defendants request that the Court:

1. Deny the government’s motion and reject its assertions attempting to 

create a blanket waiver of privilege in this action;

2. Order that the government’s review of potentially privileged documents 

immediately cease;

3. Direct the government to run a search of all documents in its possession 

and segregate all documents that contain any attorney or law firm names (based on lists 

of such names provided previously); 

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4. Require the government to provide disclosures of all communications with 

Ferrer, his counsel, or others about representation of or communications with counsel, 

the parties’ agreements regarding joint representation or defense, and/or any efforts to 

influence or affect counsel’s representation of Messrs. Lacey and Larkin or any of the 

Medalist Parties; 

5. Require the government to provide complete information about processes 

and any review of potentially privileged documents or information that has occurred to 

date; and 

6. After the requisite disclosures, permit the parties an opportunity to bring 

further motions, as appropriate, to address protection of attorney-client privileges and 

work product protections or to seek remedies for violations. 

DATED: July 20, 2018 Respectfully submitted,

/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

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CERTIFICATE OF SERVICE

I certify that on this 20th day of July, 2018, I electronically transmitted a 

PDF version of this document to the Clerk of Court, using the CM/ECF System, 

for filing and for transmittal of a Notice of Electronic Filing to the attorneys of 

record. See attached service list.

s/ Toni Thomas

Toni Thomas

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 SERVICE LIST

COUNSEL REPRESENTING

Anne M. Chapman

Mitchell Stein & Carey PC

1 Renaissance Sq. 

2 N Central Ave., Ste. 1900 

Phoenix, AZ 85004

Email: anne@mscclaw.com

Henze Cook Murphy, PLC

Lee Stein

Mitchell Stein & Carey PC

1 Renaissance Sq. 

2 N Central Ave., Ste. 1900 

Phoenix, AZ 85004

lee@mscclaw.com

Henze Cook Murphy, PLC

James C. Grant

Davis Wright Tremaine LLP

1201 3rd Ave., Ste. 2200 

Seattle, WA 98101-3045

jimgrant@dwt.com

Michael Lacey

Robert Corn-Revere

Davis Wright Tremaine LLP

1919 Pennsylvania Ave. NW, Ste. 800 

Washington, DC 20006

bobcornrevere@dwt.com

Michael Lacey

Ronald G. London

Davis Wright Tremaine LLP

1919 Pennsylvania Ave. NW, Ste. 800 

Washington, DC 20006

ronnielondon@dwt.com

Michael Lacey

Paul J. Cambria, Jr.

Liptsitz Green Scime Cambria LLP

42 Delaware Ave., Ste. 120 

Buffalo, NY 14202

pcambria@lglaw.com

Michael Lacey

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 SERVICE LIST

COUNSEL REPRESENTING

Janey Henze Cook

Henze Cook Murphy PLLC

4645 N 32nd St., Ste. 150 

Phoenix, AZ 85018

janey@henzecookmurphy.com

Michael Lacey

Bruce Feder

Feder Law Office PA

2930 E Camelback Rd., Ste. 160 

Phoenix, AZ 85016

bf@federlawpa.com

Scott Spear

Michael D. Kimerer

Kimerer & Derrick PC

1313 E Osborn Rd., Ste. 100 

Phoenix, AZ 85014

mdk@kimerer.com

John Brunst

Rhonda E. Neff

Kimerer & Derrick PC

1313 E Osborn Rd., Ste. 100 

Phoenix, AZ 85014

rneff@kimerer.com 

John Brunst

Gary S. Lincenberg

Bird Marella

1875 Century Park E # 23

Los Angeles, CA 90067

glincenberg@birdmarella.com

John Brunst

Ariel A. Neuman

Bird Marella

1875 Century Park E # 23 

Los Angeles, CA 90067

aneuman@birdmarella.com

John Brunst

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 SERVICE LIST 

COUNSEL REPRESENTING

Gopi Panchapakesan

Bird Marella

1875 Century Park E # 23

Los Angeles, CA 90067

gpanchapakesan@birdmarella.com

John Brunst

KC Maxwell

Maxwell Law, PC

899 Ellis Street

San Francisco, CA 94109

kcm@kcmaxlaw.com

Dan Hyer

Michael L. Piccarreta

Piccarreta Davis Keenan Fidel PC

2 E Congress St., Ste. 1000 

Tucson, AZ 85701

mlp@pd-law.com

Andrew Padilla

Jefferson Keenan

Piccarreta Davis Keenan Fidel PC

2 E Congress St., Ste. 1000 

Tucson, AZ 85701

jlk@pd-law.com

Andrew Padilla

Stephen M. Weiss

Karp & Weiss PC

3060 N Swan Rd. 

Tucson, AZ 85712

sweiss@karpweiss.com

Joye Vaught

Andrew Stone

US Attorney’s Office

40 N Central Ave, Ste 1800 

Phoenix, AZ 85004

andrew.stone@usdoj.gov

USA

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 SERVICE LIST 

COUNSEL REPRESENTING

John Jacob Kucera

US Attorney’s Office - Los Angeles, CA

312 N Spring St., Ste. 1200 

Los Angeles, CA 90012

john.kucera@usdoj.gov

USA

Kevin M. Rapp

US Attorney’s Office - Phoenix, AZ

2 Renaissance Square 

40 N Central Ave., Ste. 1800 

Phoenix, AZ 85004-4408

kevin.rapp@usdoj.gov

USA

Margaret Wu Perlmeter

US Attorney’s Office - Phoenix, AZ

2 Renaissance Square 

40 N Central Ave., Ste. 1800 

Phoenix, AZ 85004-4408

margaret.perlmeter@usdoj.gov

USA

Peter Kozinets

US Attorney’s Office - Phoenix, AZ

2 Renaissance Square 

40 N Central Ave., Ste. 1800 

Phoenix, AZ 85004-4408

peter.kozinets @usdoj.gov

USA

433438-1 

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