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Thomas H. Bienert, Jr. (CA State Bar No. 135311, admitted pro hac vice) tbienert@bmkattorneys.com

Whitney Z. Bernstein (CA State Bar No. 304917, admitted pro hac vice) wbernstein@bmkattorneys.com

BIENERT KATZMAN, PLC

903 Calle Amanecer, Suite 350

San Clemente, CA 92673

Telephone: (949) 369-3700

Facsimile: (949) 369-3701

Attorneys for James Larkin

Robert Corn-Revere (D.C. State Bar No. 375415, admitted pro hac vice) robertcornrevere@dwt.com

DAVIS WRIGHT TREMAINE LLP

1919 Pennsylvania Avenue NW, Suite 800

Washington, DC 20006-3401

Telephone: (202) 973-4225

Facsimile: (202) 973-4499

James C. Grant (WA State Bar No. 14358, admitted pro hac vice) jamesgrant@dwt.com

DAVIS WRIGHT TREMAINE LLP

920 Fifth Ave, Suite 3300

Seattle, WA 98104-1610

Telephone: (206) 757-8096

Facsimile: (206) 757-7096

Attorneys for Michael Lacey and James Larkin

Additional counsel listed on following page

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

United States of America,

Plaintiff,

vs.

Michael Lacey, et al.,

Defendants.

CASE NO. 2:18-CR-00422-SMR

DEFENDANTS’ SUPPLEMENTAL 

JOINT STATUS REPORT

Date: June 24, 2019

Time: 11:00 a.m. 

Assigned to Hon. Susan M. Brnovich, Courtroom 506

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DEFENDANTS’ SUPPLEMENTAL JOINT STATUS REPORT

Paul J. Cambria, Jr. (NY State Bar No. 1430909, admitted pro hac vice) pcambria@lglaw.com

Erin E. McCampbell (NY State Bar No. 4480166, admitted pro hac vice) emccampbell@lglaw.com

LIPSITZ GREEN SCIME CAMBRIA LLP

42 Delaware Avenue, Suite #120

Buffalo, NY 14202

Telephone: (716) 849-1333

Facsimile: (716) 855-1580

Attorneys for Michael Lacey

Bruce Feder (AZ State Bar No. 004832) bf@federlawpa.com

FEDER LAW OFFICE, P.A.

2930 E. Camelback Road, Suite 160

Phoenix, AZ 85016

Telephone: (602) 257-0135

Facsimile: (602) 954-8737

Attorneys for Scott Spear

Gary S. Lincenberg (CA State Bar No. 123058, admitted pro hac vice) glincenberg@birdmarella.com

Ariel A. Neuman (CA State Bar. No. 241594, admitted pro hac vice) aneuman@birdmarella.com

Gopi K. Panchapakesan (CA State Bar No. 279586, admitted pro hac vice) gpanchapakesan@birdmarella.com

BIRD, MARELLA, BOXER, WOLPERT, NESSIM,

DROOKS, LINCENBERG & RHOW, P.C.

1875 Century Park East, 23rd Floor

Los Angeles, California 90067-2561

Telephone: (310) 201-2100

Facsimile: (310) 201-2110

Attorneys for John Brunst

David Eisenberg (AZ State Bar No. 017218) david@deisenbergplc.com

DAVID EISENBERG, P.L.C.

3550 N. Central Avenue, Ste. 1550

Phoenix, Arizona 85012

Arizona State Bar No. 017218

Telephone: (602.237.5076

Attorneys for Andrew Padilla

Additional counsel listed on following page

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DEFENDANTS’ SUPPLEMENTAL JOINT STATUS REPORT

Joy Bertrand (AZ State Bar No. 024181) joyous@mailbag.com

JOY BERTRAND, ESQ. 

PO Box 2734 

Scottsdale, Arizona 85252-2734 

Telephone: 602-374-5321 

Fax: 480-361-4694 

Attorneys for Joye Vaught

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DEFENDANTS’ SUPPLEMENTAL JOINT STATUS REPORT

I. INTRODUCTION

Defendants submit this supplemental joint status report to address discovery issues 

raised by the government’s status report (Doc. 626) and to address new developments since 

Defendants filed their status report (Doc. 627). 

II. DEFENDANTS’ REQUEST FOR SPECIFIC DATA FROM BACKPAGE’S 

SERVERS AND SYSTEMS

During the April 23, 2019, status conference, the government represented it would 

provide data from the Backpage.com servers and systems to Defendants upon request. See

Transcript of April 23, 2019 Hearing, Doc. 577 at 24 (“Your Honor, but we went a step further. 

We said, hey, can you articulate to us what else on these servers that you would like extracted 

and we can look for it and provide it to you.”); see id. at 25 (“We’ve asked them repeatedly, hey, 

is there anything that we haven’t provided[?]”). 

On May 23, 2019, Defendants wrote to the government requesting 29 categories of data 

from the Backpage.com servers and systems (providing a justification for each request—even 

though under no obligation to do so). See Doc. 627-3. The government had not yet responded 

to Defendants’ requests when Defendants filed their Joint Status Report on June 1, 2019 (Doc. 

627), but did respond subsequently. 

Despite the government’s representations to the Court that it would extract information 

from the Backpage.com servers and systems if Defendants identified the information they 

sought, the government responded to Defendants’ 29 requests by disclaiming any obligation to 

“identify this information . . . in the available discovery and provide the requested analysis of 

the servers.” See Exhibit A, June 3, 2019 Letter from AUSA Rapp to W. Bernstein. Instead, 

the government offered to provide nothing to Defendants. For example:

• Defendants asked the government to extract information on the numbers of ads 

Backpage.com reported to the National Center for Missing and Exploited 

Children (NCMEC) or other law enforcement each month, and to provide copies 

of the ads reported. Doc. 627-3. This request was made because the government 

has not produced this information and/or has produced it in an unusable format. 

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The government responded saying (a) Defendants could review “the interviews 

of NCMEC employees” (which don’t contain the requested information) and (b) 

“you are free to conduct your own analysis of the servers’ data.” Exh. A. 

• Defendants asked the government to extract records and data documenting 

Backpage.com’s cooperation with law enforcement authorities—such as 

subpoena responses, communications related to those subpoenas/responses, and 

testimony provided by Backpage.com at criminal trials. Doc. 627-3. This request 

was made because the government has not produced this information and/or has 

produced it in an unusable format. The government responded by disputing that 

Backpage.com cooperated with law enforcement, claiming “whether Backpage 

was sincerely cooperating with law enforcement is ultimately a jury question,” 

and inviting Defendants to present any evidence they may have at trial. Exh. A. 

• Defendants asked the government to extract data showing the numbers of ads 

Backpage.com hosted in each category (e.g., “buy/sell/trade,” “jobs,” “rentals,” 

“adult,” etc.) each month and for each subcategory within the “adult” category 

(e.g., “escorts,” “massage,” “dating,” etc.), as well as data showing the revenues 

for ads in all categories and subcategories.1 Doc. 627-3. This request was made 

because the government has not produced this information and/or has produced 

it in an unusable format. The government’s only response was to dispute that 

Backpage.com hosted large numbers of ads in categories other than adult and to 

assert that most of Backpage.com’s revenues came from adult ads. Exh. A. 

• Defendants asked the government to extract data showing the number of ads 

Backpage.com blocked by category and subcategory each month—noting that 

 

1 Backpage.com was the second largest classified advertising website in the United States, 

“allowing users to post their own advertisements in a range of categories: local places, 

community, buy/sell/trade, automotive, musician, rentals, real estate, jobs, forums, dating, 

adult, and services.” Backpage.com, LLC v. Cooper, 939 F. Supp. 2d 805, 813 (M.D. Tenn. 2013). 

“Users posted more than 3.3 million ads on the website in the month of April 2012.” Id. 

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Backpage.com blocked a large numbers of ads.2 Doc. 627-3. This request was 

made because the government has not produced this information and/or has 

produced it in an unusable format. The government responded saying “we do 

not agree with your position, but you are free to conduct your own analysis.” 

Exh. A. 

The bottom line is that Defendants articulated the information from the Backpage.com 

servers and systems that they wished for the government to extract, but the government has 

refused to look for that data or to provide it to Defendants. Defendants expect to file a motion 

to compel the government to produce information to Defendants, including the information 

identified in their May 23, 2019, letter to the government. 

III. INFORMATION THE GOVERNMENT RECENTLY PRODUCED OR 

HAS YET TO PRODUCES

A. Bates Numbers for the Government’s Exhibits 

The government represented at the April 23, 2019, status conference that it would 

provide Bates numbers for all the documents on its list of potential trial exhibits. The 

government provided Bates numbers for many of the exhibits on May 29, 2019, but has yet to 

identify the balance of the documents by Bates number—despite the passage of nearly two 

months since the April 23, 2019, status conference. Further, the government’s most recent 

exhibit list rearranged its ordering from the original exhibit list, rendering defense counsels’ 

extensive work done off of the prior list useless. The most recent exhibit list also added new 

exhibits, some of which the government has still not produced to defendants despite repeated 

requests following receipt of the new exhibit list. Finally, the most recent exhibit list denotes 

exhibits 1062-1064, which are comprised of 141,226 pages of bank records. Given the volume 

of records, defense counsel requested that the government identify the records that relate to the 

transactions underlying the money laundering counts alleged in the Superseding Indictment or 

 

2 “Through its monitoring, Backpage.com blocked or removed more than one million user 

submissions and reported approximately 400 submissions to the [National Center for Missing 

and Exploited Children] in April 2012.” Backpage.com, LLC v. Cooper, at 814.

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otherwise indicate the actual pages that the government intends to reference at trial. The 

government has yet to respond. 

B. Historical Archived Backpage.com Email 

On April 23, 2019, the government produced to counsel for one of Defendants a hard 

disk containing a large volume of email that Backpage.com had archived. The government 

obtained the email in October 2018 and has not explained why it did not produce the emails by 

the government’s disclosure deadline nor justified its six-month delay in producing the email to 

Defendants. Moreover, despite the government’s repeated representations to the Court that it 

agreed to produce all documents in Relativity format, the government did not do so. 

Accordingly, Defendants have not yet been able to access the emails, but, based on information 

their IT consultant recently provided about the volume of data on the hard disk, Defendants 

estimate that the disk may contain several million emails comprising many millions of pages of 

data. 

C. Current Backpage.com Email

On March 8, 2019, the government produced to counsel for one of Defendants a hard 

disk containing Backpage.com’s non-archived email. The government seized the server with 

these emails in April 2018 and has not explained why it did not produce the email by the 

government’s disclosure deadline nor justified its eleven-month delay in producing the email to 

Defendants. Again, the government did not produce these documents in Relativity format. 

Thus, Defendants have not yet been able to access these emails and have asked their IT 

consultant to assess what is on the hard disk. As Backpage.com relied heavily on email for 

communication, Defendants expect the hard disk will contain hundreds of thousands (if not 

millions) of email comprising many millions of pages of data.

D. Law Enforcement Cooperation Data

In its status report, the government disclosed that it seized a Backpage.com server 

containing “subpoena data preservation requests” (i.e. documentation of Backpage.com’s 

extensive cooperation with law enforcement). Doc. 626-4 at 8. Defendants believe the 

government seized this data in April 2018. The government does not state that it has produced 

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this data to Defendants, and Defendants do not believe the government has done so. The 

government has not explained why it did not produce the law enforcement cooperation data by 

the government’s disclosure deadline nor justified its delay of more than a year in producing 

these documents to Defendants. Defendants believe this data will be extensive given the history 

of Backpage.com’s cooperation with law enforcement, and in light of the government’s 

statement that the email data discussed immediately above and the law enforcement cooperation 

data are on a 120 Terabyte (120,000 Gigabyte) disk.

E. Payment Processing Data

In its status report, the government said it expected to transfer Backpage.com’s payment 

processing data from where it seized the data in Europe to the United States by no later than 

last week, and to produce that data to Defendants next month. It is unclear why it has taken 

more than a year for this data to come to the United States given the date of the government’s 

seizures, and the government has not confirmed that it has actually even yet transferred the data 

to the U.S. As Backpage.com hosted hundreds of millions of ads over the years, with many of 

those ads being paid ads, Defendants expect the payment data will include tens of millions of 

records. In its status report, the government appears to admit that the data it proposes to 

produce to Defendants next month will not be in a usable format: “There was a way to 

associates ads or users with their related transactions in the PPI [Payment Processing Island], 

but details of how that worked are not readily available.” Doc. 626-4 at 17. Defendants 

interpret this statement to mean that the government will produce records of tens of millions 

of payments, but that Defendants will have no ability to associate any payment with a particular 

user or a particular ad—meaning the data will be useless to Defendants.

F. BDO Discovery

In its seventh disclosure, the government’s cover letter stated that the “government has 

in its possession copies of tax returns and related transmittals prepared by BDO USA 

Consulting for Backpage and related clients.” Doc. 627-5 at 22. The government stated that it 

would not share these documents with Defendants. Id. In order for Defendants to determine 

whether to seek access to these documents, defense counsel wrote to the government on May 

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13, 2019 requesting an index of the documents it was withholding. The government has yet to 

respond. 

G. Ad Data

In its status report, the government states that, in March 2019, it produced to 

Defendants certain data related to the ads hosted on Backpage.com. The government seized 

this data in April 2018 and the government has not explained why it did not produce the ad 

data by the government’s disclosure deadline nor justified its delay of nearly a year in producing 

the ad data. 

Moreover, in its status report the government admits the ad data it belatedly produced

is deficient. That is, the hard disk images the government has produced cannot be used to 

search or display ads and ad data in the manner that was possible before the government’s 

seizure. Meaning, it is difficult or impossible for Defendants to find the data underlying 

particular ads despite the fact that this data was easily accessible and searchable before the 

government seized and disassembled the website. As the government’s expert Special Agent 

Richard Robinson admits: 

• “No one server contains web pages as they were presented to the user when the 

site was active. Elements would need to be pulled from a database server and an 

image server for a web server to be able to generate an ad as it would have been 

displayed to the user.” Doc. 626-4 at 43, ¶ 7(B).

• “[FBI Information Technology Specialist Examiner Matthew] Frost has been 

able to identify database entries and images that were included in ads specified 

in the indictment in the form of database entries and individual image files, 

rather than rendered as a single coherent webpage.” Doc. 626-4 at 9, ¶ 18.

The government then goes on to admit:

• “Because of this manner of operation, any given ad is not saved on any of the 

 

3 This and the following page numbers refers to the page number (of 22) assigned to 

Document 626-4 by the ECF system.

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servers as a user would have seen it. Viewing a page as it would have appeared 

would require interaction with all three basic types of servers. . . . Even though 

the any one [sic] of the Database Servers and Image Servers contain data for all 

Backpage.com ads at the time that the site was taken down, simulating the 

function of the website would require extensive time and expertise, if it is 

possible at all.” Doc. 626-4 at 13 (emphasis supplied). 

The government also tacitly admits that it understood the importance of maintaining 

the functionality of the website. Special Agent Robinson says that the government “hoped” 

to keep the website functional in Amsterdam after it rendered the system non-functional in 

the United States “to improve the possibility of being able to easier search and display ads as 

they would have appeared when the Backpage.com site was live.” Doc. 626-4 at 9, ¶ 19.

IV. CONCLUSION

Defendants expect to address these issues further in a forthcoming motion to compel. 

DATED: June 18, 2019 Thomas H. Bienert, Jr.

Whitney Z. Bernstein 

BIENERT KATZMAN, PLC

By: /s/ Whitney Z. Bernstein

Whitney Z. Bernstein

Attorneys for James Larkin

DATED: June 18, 2019 Gary S. Lincenberg

Ariel A. Neuman

Gopi K. Panchapakesan

BIRD, MARELLA, BOXER, WOLPERT, NESSIM, 

DROOKS, LINCENBERG & RHOW, P.C.

By: /s/ Ariel A. Neuman

Ariel A. Neuman

Attorneys for John Brunst

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DATED: June 18, 2019 Robert Corn-Revere

James C. Grant

DAVIS WRIGHT TREMAINE LLP

By: /s/ James C. Grant

James C. Grant

Attorneys for Michael Lacey and James Larkin

DATED: June 18, 2019 Paul J. Cambria, Jr.

Erin E. McCampbell 

LIPSITZ GREEN SCIME CAMBRIA LLP

By: /s/ Paul J. Cambria, Jr.

Paul J. Cambria, Jr.

Attorneys for Michael Lacey

DATED: June 18, 2019 Bruce Feder

FEDER LAW OFFICE, P.A.

By: /s/ Bruce Feder

Bruce Feder

Attorneys for Scott Spear

DATED: June 18, 2019 David Eisenberg

DAVID EISENBERG, P.L.C.

By: /s/ David Eisenberg

David Eisenberg

Attorneys for Andrew Padilla

DATED: June 18, 2019 Joy Bertrand

JOY BERTRAND, ESQ.

By: /s/ Joy Bertrand

Joy Bertrand

Attorneys for Joye Vaught

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CERTIFICATE OF SERVICE

I certify that on this 18th day of June 2019, I electronically transmitted a PDF version 

of this document to the Clerk of the Court, using the CM/ECF System, for filing and for 

transmittal of a Notice of Electronic Filing to the following CM/ECF registrants listed below. 

/s/ Toni Thomas

 Toni Thomas

Anne Michelle Chapman, anne@mscclaw.com 

Erin E. McCampbell, emccampbell@lglaw.com 

Anthony R. Bisconti, tbisconti@bienertkatzman.com 

Ariel A. Neuman, aan@birdmarella.com 

Bruce S. Feder, bf@federlawpa.com 

James C. Grant, jimgrant@dwt.com 

Lee David Stein, lee@mscclaw.com 

Paul J. Cambria, pcambria@lglaw.com 

Robert Corn-Revere, bobcornever@dwt.com 

Ronald Gary London, ronnielondon@dwt.com 

Janey Henze Cook, janey@henzecookmurphy.com 

John Lewis Littrell, jlittrell@bmkattorneys.com 

Seetha Ramachandran, Seetha.Ramachandran@srz.com 

Thomas H. Bienert, Jr. tbienert@bienertkatzman.com 

Whitney Z. Bernstein, wbernstein@bienertkatzman.com 

Gary S. Lincenberg, glincenberg@birdmarella.com 

Gopi K. Panchapakesan, gpanchapakesan@birdmarella.com 

Michael D. Kimerer, mdk@kimerer.com 

Rhonda Elaine Neff, rneff@kimerer.com 

David S. Eisenberg, david@deisenbergplc.com 

Joy Malby Bertrand, joyous@mailbag.com 

John Jacob Kucera, john.kucera@usdoj.gov 

Kevin M. Rapp, Kevin.Rapp@usdoj.com 

Margaret Wu Perlmeter, Margaret.perlmeter@usdoj.gov 

Reginald E. Jones, reginald.jones4@usdoj.gov 

Peter Shawn Kozinets, Peter.Kozinets@usdoj.gov 

Andrew C. Stone, andrew.stone@usdoj.gov

Case 2:18-cr-00422-DJH Document 639 Filed 06/18/19 Page 12 of 12