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ELIZABETH A. STRANGE

First Assistant United States Attorney District of Arizona

KEVIN M. RAPP (Ariz. Bar No. 014249, kevin.rapp@usdoj.gov)

MARGARET PERLMETER (Ariz. Bar No. 024805, margaret.perlmeter@usdoj.gov)

PETER S. KOZINETS (Ariz. Bar No. 019856, peter.kozinets@usdoj.gov) 

ANDREW C. STONE (Ariz. Bar No. 026543, andrew.stone@usdoj.gov)

JOHN J. KUCERA (Cal. Bar No. 274184, john.kucera@usdoj.gov) 

Assistant U.S. Attorneys

40 N. Central Avenue, Suite 1800

Phoenix, Arizona 85004-4408

Telephone (602) 514-7500

BRIAN BENCZKOWSKI

Assistant Attorney General

Criminal Division, U.S. Department of Justice

REGINALD E. JONES (Miss. Bar No. 102806, reginald.jones4@usdoj.gov)

Senior Trial Attorney, U.S. Department of Justice Child Exploitation and Obscenity Section 

950 Pennsylvania Ave N.W., Room 2116

Washington, D.C. 20530

Telephone (202) 616-2807 

Attorneys for Plaintiff

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

United States of America,

Plaintiff, 

v. 

Michael Lacey, et al.,

Defendants.

CR-18-422-PHX-SPL (BSB) 

UNITED STATES’ REPLY IN 

SUPPORT OF MOTION FOR 

CLARIFICATION RE ORDER TO 

RESOLVE ATTORNEY-CLIENT 

PRIVILEGE ISSUES [Doc. 409]

Introduction and Summary of Argument

Defendants’ response to the government’s motion for clarification (Doc. 409)

misconstrues the government’s argument and fails to address the relevant issue. The 

question before the Court is how potentially privileged materials should be reviewed to 

determine whether a privilege actually exists. The government has proposed that a “filter 

team”—a group made up of government attorneys who are not members of the prosecution 

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team—review the remaining materials to make an initial determination. Two federal 

judges have issued orders approving this approach. 

Defendants do not suggest an alternative method for review. Their response seems 

to implicitly suggest one of two conclusions, either (a) Defendants believe that all the 

materials that have been identified from the various search warrants as potentially 

privileged should just be deemed “privileged” without further review, or (b) the Court 

should bear the burden of reviewing all 10,733 emails to determine privilege. Defendants’ 

first suggestion isn’t appropriate—a privilege needs to attach before the document is 

shielded from the government’s investigative team. And Defendants’ second suggestion 

is unreasonable—the Court shouldn’t be forced to examine all the potentially privileged 

documents. The government’s filter team should finish the job it started and the Court can 

then resolve any disputes about individual communications that may remain.

A. The Government’s Filter Team

Two different federal judges, in separate orders, authorized the government to use 

a filter team to review documents obtained through search warrants.1

 In the first order, the 

court directed the filter team to review, “emails for potentially privileged and protected 

materials, and [to] keep all legitimately protected materials, as well as materials suspected 

to be protected, segregated from the Investigative Team unless the Court rules that they 

can be disclosed.” (Doc. 195-1.) In the second order, the court stated, “the Filter Team 

will review the documents for privilege or protection only and will disseminate nonprivileged and non-protected documents to the Investigative Team.” (Doc. 195-2.) 

These orders provide the procedure for the filter team to follow. It will review the 

potentially privileged materials and will ensure that both (a) all legitimately protected 

materials and (b) materials suspected to be protected are segregated from the investigative

team. If there’s a question about whether a certain material is privileged, then the specific 

 

1 These issues were discussed in detail in the government’s motion to resolve 

attorney-client privilege issues. (Doc. 195 at 3-4.)

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communication will be provided to the Court for an in camera review to make the 

determination.2

 Before the filter team stopped its review in May 2018, after the 

investigative team received a letter from defense attorneys raising concerns about the 

review, it had reviewed approximately 6,500 of the 10,733 emails. (See Doc. 195 at 4.) 

After the filter team is permitted to reengage, the remainder of the emails will be reviewed 

in a timely and efficient manner.

B. Case Law Supports Government’s Use of a Filter Team in this Case

The government has previously cited a number of cases where courts have approved 

the use of filter teams to review potentially privileged documents. (See Doc. 269 at 15; 

Doc. 355 at 3.) Likewise, Defendants have cited the same three cases in multiple filings 

for the proposition that filter teams are disfavored. (See Doc. 235 at 21; Doc. 409 at 4 

(citing United States v. Renzi, 722 F. Supp. 2d 1100 (D. Ariz. 2010); In re Grand Jury 

Subpoenas, 454 F.3d 511 (6th Cir. 2006); United States v. Pedersen, 2014 WL 3871197 

(D. Or. Aug. 6, 2014).) Those three cases are all distinguishable from the facts at hand.

The Renzi case involved the government’s use of a filter team to listen to phone 

conversations recorded in accordance with a Title III Wiretap. 722 F. Supp. 2d at 1128. 

The court criticized the government for failing to obtain an order authorizing the use of a 

filter team before listening to potentially privileged conversations. Id. (“[T]he use of taint 

review in this instance, however well-intentioned initially, was not authorized by Title III 

or by the supervising Court’s Wiretap Order.”). But the court “reject[ed] the notion that 

 

2 Similarly, the Court’s in camera review may be necessary to determine if the 

crime-fraud exception applies. See United States v. Zolin, 491 U.S. 554, 563 (1989) (once 

showing is made sufficient to support a reasonable belief that in camera review of allegedly 

privileged attorney-client communications might yield evidence establishing applicability 

of crime-fraud exception, the decision of whether to engage in an in camera review rests 

in sound discretion of district court); see also In re Grand Jury Proceedings (The 

Corporation), 87 F.3d 377, 380 (9th Cir. 1996) (protection afforded by attorney-client 

privilege does not extend to any communication in furtherance of an intended or present 

illegality). Indeed, United States District Court Judge Diane J. Humetewa has already 

found the crime-fraud exception to apply to some communications that defendant Lacey 

had originally classified as protected by the attorney-client privilege. (See Exhibit A, Order 

dated April 20, 2018, filed under seal.)

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the use of taint review is per se unreasonable.” Id. Here, the Renzi court’s rationale doesn’t 

apply because two separate federal judges have already authorized the government’s use 

of a filter team.

The In re Grand Jury Subpoenas decision by the Sixth Circuit is also 

distinguishable. There, the potentially privileged materials were not already in the 

government’s possession. Based on this fact, the court found:

[G]overnment taint teams seem to be used primarily in limited, exigent 

circumstances in which government officials have already obtained the 

physical control of potentially-privileged documents through the exercise of 

a search warrant. In such cases, the potentially-privileged documents are 

already in the government’s possession, and so the use of the taint team to 

sift the wheat from the chaff constitutes an action respectful of, rather than 

injurious to, the protection of the privilege. . . . But the government does not 

actually possess the potentially-privileged materials here, so the exigency 

typically underlying the use of taint teams is not present.

454 F.3d at 522-523. Based on the Sixth Circuit’s reasoning, the government’s use of a 

filter team here is “an action respectful of, rather than injurious to, the protection of the 

privilege.” Id. 

Finally, the Pedersen case dealt with a filter team where the protocol was “grossly 

deficient and was not followed.” 2014 WL 3871197, at *29. Specifically, the district court 

found that an attorney was permitted to work on both the filter team and the investigative

team, the protocol allowed filter team members to intentionally review privileged material, 

and the government failed to protect privileged telephone calls that it had intercepted. Id. 

These problems are not present here. The filter team is completely separate from the 

investigative team and no filter team members will work on any issues related to the 

prosecution beyond their filter team duties. The filter team isn’t intentionally reviewing 

privileged material, but rather examining communications that are potentially privileged. 

Finally, the communications obtained from the search warrants are emails, rather than 

telephone recordings. 

The three cases Defendants have relied on exclusively all support filter review in 

certain situations, including those at issue here. Namely, the government received prior 

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approval for using a filter team to review potentially privileged materials, the materials are 

already in the government’s possession, and the protocol in place is not grossly deficient. 

Filter review in accordance with the two previously issued federal court orders is 

reasonable and efficient. See Hicks v. Bush, 452 F. Supp. 2d 88, 103 (D.D.C. 2006) 

(granting government’s motion to authorize filter-team review and explaining that there 

was “[n]o practical and effective alternative to the Filter Team. . . . Neither review by 

special masters nor pre-screening by counsel for the detainees could be accomplished in a 

reasonable amount of time.”).

C. Conclusion

The Court should enter the proposed order (Doc. 355-1) to permit the government 

to complete its filter review and ensure the discovery process proceeds in an efficient 

manner.

Respectfully submitted this 4th day of January, 2019.

ELIZABETH A. STRANGE

First Assistant United States Attorney

District of Arizona

s/Andrew C. Stone

KEVIN M. RAPP

MARGARET PERLMETER

PETER S. KOZINETS

ANDREW C. STONE

JOHN J. KUCERA

Assistant U.S. Attorneys

BRIAN BENCZKOWSKI

Assistant Attorney General

Criminal Division, U.S. Department of Justice

REGINALD E. JONES

Senior Trial Attorney

U.S. Department of Justice, Criminal Division

Child Exploitation and Obscenity Section

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Certificate of Service

I hereby certify that on this date, January 4, 2019, I transmitted the foregoing under-seal 

document for filing to the Clerk of the United States District Court and sent a copy via electronic mail to: Paul J. Cambria Jr. Esq. and Erin e. McCambpell, Esq., Lipsitz Green Scime Cambria, LLC, 42 Deleware Ave, Suite 120, Buffalo, NY 14202, 

pcambria@lglaw.com and emccampbell@lglaw.com, Thomas H. Bienert, Jr., Esq., Anthony R. Bisconti, Esq., Kenneth M. Miller, Esq., and Whitney Bernstein, Esq., Bienart, 

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

tbienert@bmkattorneys.com, tbisconti@bmkattorneys.com, kmiller@bmkattorneys.com, wbernstein@bmkattorneys.com; Davis Wright Termaine, LLP, 1201 Third Avenue, Suite 2200, Seattle, WA 98101, jimgrant@dwt.com;

Michael D. Kimerer, Esq. and Rhonda Elaine Neff, Esq., 1313 E. Osborn Road, Suite 100, 

Phoenix, AZ 85014, MDK@kimerer.com and rneff@kimerer.com; Robert Corn-Revere 

Esq., Davis Wright Termaine, LLP, 1919 Pennsylvania Avenue N.W., Suite 800, Washington, D.C., 20006, bobcornrevere@dwt.com; Bruce Feder, Esq., 2930 East Camelback Road, Suite 160, Phoenix, AZ 85016, bf@federlawpa.com; Gary Linenberg, Esq., Ariel Neuman, Esq., Gopi K. Panchapakesan, Esq., Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg & Rhow, P.C., 1875 Century Park East, 23rd Floor, Los 

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

s/ Angela Schuetta_____

Angela Schuetta

U.S. Attorney’s Office

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