Exhibit B 

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U.S. Department of Justice

United States Attorney

District of Arizona

Whitney Z. Bernstein

Thomas H. Bienert, Jr.

903 Calle Amanecer, Suite 350

San Clemente, CA 92673

VIA EMAIL

Re: Your letter of May 23, 2019

Dear Ms. Bernstein:

We wish to respond to your May 23, 2019 letter. You request that the United States not 

only identify certain subsets of disclosed Electronically Stored Information (“ESI”) (e.g., specific

data, email chains, lists of prohibited terms, certain ads, etc.), but conduct an independent analysis 

of specific data the Defense views as relevant and material to the case.

First, the artificial deadline of responding to your May 23rd (12-page) correspondence

within a week (admittedly this was preferable to the original 24 hours you gave us to respond) is 

unreasonable particularly in light of the fact that you have had the discovery for over a year and, 

as detailed below, most all of these issues were well known to the Defense before the April 2018 

indictment and the months that followed. Although you did not start representing Mr. Larkin until 

several weeks after arrest, many of the attorneys that are parties to a Joint Defense Agreement have 

been representing Mr. Larkin for years prior to indictment and have been involved in various 

litigation where the same discovery has been implicated. Simply put, we are struggling to 

understand why you waited over a year after indictment and discovery to make these urgent 

requests now.

Second, in our status memorandum filed on May 31 we have provided the defense a concise 

explanation of the status of the servers. In addition, we provide a detailed explanation as to why 

the government does not intend to image the various web servers because they contain no unique 

data. In other words, the web servers stored neither website content nor images. (See CR 626.)

Two Renaissance Square Main: (602) 514-7500

40 N. Central Ave., Suite 1800 Main Fax: (602) 514-7693

Phoenix, AZ 85004-4408

June 3, 2019

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Third, for several reasons we do not agree that we are obligated to identify this information 

(we are not conceding that your characterization of the evidence is accurate) in the available 

discovery and provide the requested analysis of the servers. In short, Rule 16 does not obligate 

the government to even attempt to identify the categories of evidence in discovery that you believe 

exists and/or conduct analysis of the data on behalf of the defense. As you know, the Court, in this 

case, has already opined on this issue. United States v. Lacey, et. al., 2018 WL 4963292, at *1 (D. 

Ariz. Oct. 15, 2018) (“The Government has limited discovery obligations. Rule 16 of the Federal 

Rules of Criminal Procedure requires the Government to, upon a defendant’s request, provide or 

allow the defendant access to documents and objects in the Government’s possession. Under Rule 

16, the Government must disclose any oral or written statements made by a defendant, the 

defendant’s prior record, any items that are material to preparing the defense, items that the 

Government intends to use in its case-in-chief, and items that were obtained from or belong to the

defendant. Fed. R. Crim. Pro. 16.”) (emphasis added).

As you well know, the evidence and data that you seek has been the subject of discovery 

in previous litigation and investigations. For example, the data contained in the discovery that you 

are requesting (e.g., Backpage’s supposed cooperation with law enforcement, the percentage of 

revenue generated by the adult category compared to other categories, moderation that involved 

editing offending words and continuing to post an ad obviously soliciting prostitution, etc.), has 

been exchanged in related civil cases since 2012. These same issues were implicated in the U.S. 

Senate’s investigation of Backpage and the resulting PSI report, the prosecution by the California

Department of Justice, numerous articles, television exposes, and even a documentary movie.

And, Mr. Larkin has had the same counsel (either noticed or consulting) since 2012.

Importantly, notwithstanding the availability of this information in other litigation and in 

discovery that the United States has provided, the United States has no duty to identify exculpatory 

portions (again we are neither conceding that the evidence sought exists nor is exculpatory) of 

disclosed material; that is part of the defendant’s “reasonable diligence” requirement. We are, 

however, aware that more may be required where the number of documents is voluminous.

United States v. Skilling, 554 F.3d 529, 576 (5th Cir. 2009). In such cases, the government satisfies 

its obligations, as we have here (i.e., by providing a detailed indictment, a witness and an exhibit

list months before trial, “hot” docs, witness statements before we are obligated, etc.), where it takes 

extra steps to help the defense manage the discovery, and the defense fails to show that the 

disclosure was done in bad faith or with the intent to hide documents. In Skilling, the court rejected 

the argument that the government should have located and turned over exculpatory evidence within 

the file, finding that “the government was in no better position to locate any potentially exculpatory 

evidence than was Skilling.” Id. at 577. The court instead found that “[a]s a general rule, the 

government is under no duty to direct a defendant to exculpatory evidence within a larger mass of 

disclosed evidence,” and rejected the defense’s argument that the government concealed favorable 

information amidst millions pages of information. Id. at 576. While the government is not 

permitted to act in bad faith in performing its obligations under Brady, such as purposely hiding 

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Brady information in a huge open file, the affirmative steps the government took beyond merely 

providing Skilling with the open file demonstrated the government’s good faith efforts to comply 

with Brady. Id.; see, e.g., United States v. Salyer, 271 F.R.D. 148, 158 (E.D. Cal. 2010) (finding 

that defendant was only entitled to discovery of government materials relevant to mounting a 

defense and rejecting defendant’s “‘all documents’ civil type discovery request”), aff'd with 

modifications by United States v. Salyer, 2010 WL 3036444 (E.D. Cal. Aug. 2, 2010); Lacey, 2018 

WL 4963292, at *2 (citing Rhoads v. Henry, 638 F.3d 1027, 1039 (9th Cir. 2011), as “stating that 

there is no authority for the proposition that the government’s Brady obligations require it to point 

the defense to specific documents within a larger mass of material that it has already turned over”).

In addition, much of the evidence was provided to the government by the defense. In 

United States v. Warshak, 631 F.3d 266 (6th Cir. 2010), the court ruled that the provision of 

massive amounts of ESI seized from defendant-corporation in an allegedly unsearchable format 

was proper, in part because (as is also the case here) the government was giving the defendant 

back its own information. Id. at 296. The court rejected the notion that Federal Rule of Civil 

Procedure 34(b)(2)(E)(i), which requires documents to be produced in a specific format, is 

applicable to criminal cases. Id. at 296 n.26. The Sixth Circuit noted that federal criminal 

discovery is governed by Federal Rule of Criminal Procedure 16, which contains no similar 

requirement. Id. at 296. The court found that the trial court had not abused its discretion in ruling 

that defendants were not deprived of a fair trial by the manner of discovery production, given that 

the “overwhelming majority” of discovery was taken from defendants’ computers, and the 

government had provided “something of a guide to the electronic discovery,” including a detailed 

“room-by-room inventory” of all items seized from defendants’ company. Id. at 296–97. 

Similarly, in United States v. W.R. Grace, 401 F. Supp. 2d 1069, 1080 (D. Mont. 2005), the district 

court refused to order the government to conduct a Brady/Giglio identification review of the 

massive amounts of information acquired in that case. First noting that much of the produced 

information was text searchable (as is the case here), the court found “most importantly” that the 

individual defendants had access to corporate assistance in the search for exculpatory evidence, 

the vast majority of documents at issue were corporate documents, and civil litigation had been 

ongoing for years, making the search for documents that much easier. The United States has 

provided a preliminary witness and exhibit list, “hot docs,” a comprehensive superseding 

indictment, evidence (emails, agendas, etc.), Jencks Act statements, and extensive document 

discovery disclosed in industry-standard, text-searchable format. The United States also has 

discussed the government’s case and supporting evidence (and its relevance) in meetings with 

some Defense lawyers and in several pleadings. (See, e.g., Docs. 446, 512.) In United States v. 

Slade, 2011 WL 5291757, at *2 (D. Ariz. Sept. 30, 2011), the court approved of substantially 

similar discovery efforts: 

The Government early on provided Defendants with its list of proposed witnesses, 

experts, and trial exhibits, and the discovery relating to that disclosure was 

provided. The fact that the Government’s discovery provided is vastly larger than 

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these documents, or the fact of this “surplusage” is of consequence because it 

divides the Defendants’ argument into two parts: (1) the Government has an 

obligation to organize and make readily searchable documents it has identified as 

documents supporting its prosecution, and (2) with respect to other documents in 

the Government’s possession and provided to Defendants, the Government has an 

obligation to organize that discovery and make it readily searchable. With respect 

to the former argument, this Court finds that the Government has complied with 

that obligation, and to the extent the Government’s organization and search features 

were inadequate, the Court granted Defendants’ request for discovery assistance.

As in Slade, counsel for Joy Vaught (Stephen Weiss) investigated whether the Defense could 

receive financial assistance for discovery review, and he advised the Court that such discovery 

assistance is “not only available for indigent defendants but also retained defendants.” (See Doc. 

348, 10/5/18 Hr’g Tr., Vol II at 115-18.)

Moreover, the Defendants and in many cases their counsel are intimately familiar with the 

United States’ discovery for a couple of reasons. The Defendants authored, sent or received the 

subject emails, appeared on management agendas, and discussed news and articles in emails 

(including Nicholas Kristof’s coverage of Backpage in the New York Times, the clergy letter by 

Auburn Seminary in the Times, and extensive news coverage of the December 2011 Detroit 

Backpage quadruple murders, among numerous others). Further, the Defendants were aware of 

and discussed television and other news media exposes (including broadcasts on CNN and 

MSNBC) condemning Backpage’s business practices. Moreover, Backpage’s affiliate and 

reciprocal link relationships (with The Erotic Review and “Dollar Bill”) were discussed at various 

management meetings. 

Fourth, Defendants have had some of the same attorneys since at least 2012 (including 

attorneys from Davis Wright Tremaine and Daniel Quigley), and Defendants and their attorneys

have been involved in assembling discovery in response to U.S. Senate subpoenas, federal and 

state grand jury subpoenas, and numerous civil discovery requests during that time. And, again, 

the documents (particularly the “hot docs”) are familiar to Mr. Larkin and other Backpage 

defendants because they largely consist of internal Backpage documents that were authored, sent 

or received by them. Moreover, as noted above, the government has voluntarily provided indexes, 

“hot docs,” a preliminary witness list and a preliminary exhibit list with corresponding Bates 

numbers for each exhibit. See, e.g., United States v. Kennedy, 64 F.3d, 1465, 1470-71 (10th Cir.

1995) (in affirming order denying defendants’ request for paralegals, the court noted that defense 

counsel could rely on the assistance of defendant, who had “intimate familiarity” with many of the 

documents because of his position as the former company CFO; additionally, “the government 

provided extraordinary assistance during discovery...to enable the defense to review the repository 

materials efficiently,” including indices and hot documents).

With this background in mind, we address the subject matter of your requests as follows:

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A. Backpage.com Website Generally

Regarding the information you seek about the website, many of your requests for specific 

information about data contained within the website have already been addressed by the United 

States in previous correspondence or pleadings, or we have no obligation to conduct the search 

and analysis you request. For example, we obviously do not share your view that Backpage 

engaged in cooperation with law enforcement in screening and blocking ads. As set forth in the 

Superseding Indictment, the PSI Report, numerous interviews (and plea agreements) of moderators

and other Backpage employees (including Hyer and Ferrer, among others), internal emails, and 

other evidence, Backpage merely removed offending words, text or photos and posted the ad 

knowing that the ad promoted prostitution. This practice was unknown to many law enforcement 

agencies that contacted Backpage for assistance. Similarly, Backpage’s compliance with 

subpoenas and providing testimony at criminal trials of sex traffickers (including child sex 

traffickers) is hardly cooperation. It is (as we explained in previous correspondence) merely 

avoiding contempt. (See Nov. 16, 2018 Letter to Michael Piccarreta.) Notably, we never received 

a response to our position on this issue. In the final analysis, whether Backpage was sincerely 

cooperating with law enforcement is ultimately a jury question. 

In addition, at trial, the United States will present evidence of the numerous subpoenas 

served on Backpage and trial testimony by Backpage employees at various criminal trials, as it is 

relevant to demonstrate the Defendants’ knowledge that they were operating a prostitution website. 

If you have evidence, however, that contradicts the testimony and the evidence above, the 

Defendants will have the opportunity to present it at trial. 

Also, law enforcement witnesses who provided commendations to Backpage for their 

assistance on cases will testify at trial. We expect them to testify that had they known about 

Backpage’s internal business practices (the financial relationship with The Erotic Review, 

aggregation, moderation, other reciprocal link relationships, etc.) they would not have praised 

Backpage but instead would have condemned the website and its operators. 

Your claim that Backpage was “a general purpose classified ad website and only a fraction 

of the ads were posted in the adult categories” is a position, to put it mildly, at odds with numerous 

internal emails and documents, PowerPoints prepared by Backpage employees (and often at the 

direction of Mr. Lacey and Mr. Larkin), analytics tracking the volume of prostitution ads prepared 

by Mr. Spear and discussed at management meetings, meeting agendas, witness interviews, the 

PSI Report, revenue statements and bank records, among other evidence. In short, this position is 

demonstrably false. As you well know, the adult section and “therapeutic” massage were the only 

categories that charged for posting ads. After 2015, one could post an ad for free, but one paid to 

repost it or make it more visible (e.g., pay for it to be a sponsored ad). Indeed, we expect the 

evidence at trial to demonstrate that Mr. Larkin, in particular, acknowledged in several forums

(e.g., meetings with NCMEC, management meetings, internal emails, statements to employees, or 

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other owners, etc.) that Backpage could not survive without the adult section and acknowledged

it was Backpage’s primary source of revenue. 

Lastly, regarding your requests regarding referrals to NCMEC, we direct you to the

interviews of NCMEC employees and Backpage’s internal emails (many of which were provided 

by the Defendants to the United States, the Senate PSI, the California Department of Justice, and 

others). But, again, you are free to conduct your own analysis of the servers’ data. 

B. Moderation

Regarding Backpage’s moderation practices, you are requesting data about blocked,

revised and removed ads. Once again, we do not agree with your position, but you are free to 

conduct your own analysis. Your request, however, is based on the false premise that each original 

ad is available in the database for review to determine what changes, if any, were made to it. 

However, as stated on p. 26 (fn. 161) of the PSI Report, the original ads generally were not retained 

by Backpage. In addition, your request for blocked ads, etc., ignores the fact documented on pp.

34-36 of the PSI Report that, beginning in 2012, the primary method for keeping banned terms off 

of the site was educating the users by keeping them from posting the ad if it contained a banned 

term. In any event, you will need to conduct your own analysis to determine what specific terms 

or photos were flagged for editing.

As you know, moderation (in the domestic markets) largely ceased in 2015 when most of 

the moderators were terminated. There was moderation, however, located in the Philippines, but 

those moderators primarily reviewed ads (and aggregated ads from other prostitution websites) 

posted in international markets. From 2015 until the seizure of the website in April 2018,

moderation was drastically reduced, along with staffing. In other words, ads resembling the ads 

pre-2015, that contained terms that were obviously solicitations for prostitution, remained on the 

website. In 2017, the adult category was shut down and the prostitution ads migrated to the 

personals section where, again, little to no moderation was conducted. We expect the evidence at 

trial to show that ads lacking moderation were much more explicit and there was no doubt that 

they were solicitations for prostitution. Lastly, shortly before the shut down of Backpage in April 

2018, Backpage decided (likely based on increased civil and criminal pressure and financial 

considerations) to allow posters to include just a photo, a link, and a phone number.

C. Reciprocal Link and Affiliate Programs

Similar to our response above, you will need to conduct your own analysis of the data to 

determine the frequency of the affiliate program. Mr. Larkin’s knowledge of The Erotic Review, 

however, is detailed in Doc. 446. As you know, he was confronted with several Backpage ads for 

trafficked children that included links or references to TER reviews, and with corresponding TER 

reviews, during a March 2011 meeting at NCMEC. At the meeting, Mr. Larkin disavowed any 

knowledge of the TER website. (Doc. 446 at 11-12; Doc. 446-1 at 40-62.) Yet, years prior to that 

meeting, Mr. Larkin alerted both Mr. Spear and Mr. Ferrer to TER’s owner (David Elms) February 

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2009 arrest for prostitution activity by forwarding a newspaper article detailing his arrest. (Doc. 

446 at 11-12; Doc. 446-1 at 70-72.) Lastly, his own paper published an article about the arrest.

(Doc. 446-1 at 65-69.) Despite Elm’s arrest, Backpage’s relationship with TER continued 

unabated for a couple of more years. Based on pressure from NCMEC and others, Backpage 

discontinued this relationship but still allowed posters to include their TER identification numbers

(without a blatant reference to TER) and/or state, for example, that the poster been “well reviewed” 

or “google my reviews.” (See Doc. 446-1 at 73-74.) As for your request for data regarding 

Backpage’s affiliate relationship with “Dollar Bill,” once again we are under no obligation to 

retrieve and analyze this data from the available discovery on behalf for the defense. 

D. Ads Supporting Substantive Counts

Your understanding is not fully accurate regarding the origin of the subject ads in the 

indictment, as it is based on a false premise. Most of the ads were not obtained by the “Wayback

Machine,” but rather from various law enforcement agencies via subpoena. Those law 

enforcement witnesses are expected to testify and will detail how they obtained the subject ads 

from Backpage during the course of their criminal investigations of prostitution on Backpage, 

pimps and/or child sex traffickers. The irony that you are asking for instances of cooperation by 

Backpage by providing compliance with various subpoenas and then disputing authenticity of ads 

provided by Backpage (in response to a subpoena) is disingenuous. In any event, either the victim

or a former Backpage employee will testify to the authenticity of the victim’s ad or to the posting 

of the ad. Unfortunately, in some cases, a family member (where the victim is no longer alive)

may testify to the ad. 

In addition, some of the victims were the subject of civil litigation where attorneys 

representing Mr. Larkin in this case and other Backpage defendants had the opportunity to depose 

the victim regarding their ad, among other topics. In short, we have directed you to relevant 

evidence in the available discovery involving the subject victims. Any further analysis of the ads 

will need to be conducted by the defense.

Our response to the May 23rd letter may not—in your view—be satisfactory. If you choose 

to file some type of pleading regarding discovery (or a response to our status memo), in fairness,

please attach this letter so that the Court has an understanding of our efforts to be responsive to 

your requests and the authority we relied upon in addressing your various requests. 

Sincerely, 

MICHAEL BAILEY

U.S. Attorney 

District of Arizona

s/ Kevin Rapp

KEVIN RAPP

Assistant U.S. Attorney

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