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Paul J. Cambria, Jr. (Cal. Bar No. 177957) (admitted pro hac vice) 

Erin McCampell (NY Bar No. 4480166) (admitted pro hac vice) 

LIPSITZ GREEN SCIME CAMBRIA LLP 

42 Delaware Avenue, Suite #120 

Buffalo, New York 14202 

Telephone: (716) 849-1333 

Facsimile: (716) 855-1580 

Email: pcambria@lglaw.com 

emccampbell@lglaw.com 

Counsel for Defendant Michael Lacey

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

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

BIENERT, MILLER & KATZMAN, PLC 

903 Calle Amanecer, Suite 350 

San Clemente, California 92673 

Telephone: (949) 369-3700 

Facsimile: (949) 369-3701 

Email: tbienert@bmkattorneys.com 

wbernsteinr@bmkattorneys.com 

Counsel for Defendant James Larkin 

James C. Grant (admitted pro hac vice) 

DAVIS WRIGHT TREMAINE LLP 

920 Fifth Ave, Suite 3300 

Seattle, Washington 98104-1610 

Telephone: (206) 757-8096 

Facsimile: (206) 757-7096 

Email: jamesgrant@dwt.com 

Counsel for Defendants Michael Lacey and 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. CR-18-422-PHX-SPL 

REPLY IN SUPPORT OF MOTION 

FOR FURTHER CLARIFICATION 

RE ORDER ALLOWING THE 

GOVERNMENT TO CONTINUE 

REVIEW OF PRIVILEGED 

COMMUNICATIONS 

Case 2:18-cr-00422-DJH Document 478-1 Filed 02/27/19 Page 1 of 10
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I. INTRODUCTION

Defendants moved for clarification of the Court’s order allowing the Government 

to continue reviewing privileged attorney-client communications employing a “filter 

team.” See Doc. 445 (Court’s Order); Doc. 452 (Defendant’s Motion). The principle 

reasons for doing so were because the Government has been less than clear about the 

protocols to be used by its “filter team,” and Defendants sought to ensure they would 

have a meaningful opportunity to object concerning any documents the Government 

sought to disclose to its “prosecution team.”1 The Government’s response to 

Defendants’ Motion (Doc. 462; “Resp.”) underscores these concerns and demonstrates 

why the Court should further clarify its Order to direct that the Government’s “filter 

team” must disclose to Defendants all documents it contends are not privileged before 

they are turned over to the “prosecution team.” This is a standard practice required in 

the case law, and even the DOJ recommends this practice to protect privileges. On the 

other hand, adopting an approach allowing the Government to make unilateral privilege 

calls while precluding Defendants from having rights to object would raise serious 

constitutional problems under the Fifth and Sixth Amendments. Moreover, Defendants’ 

request that the Court follow recognized practices for “filter team” review will make the 

process more efficient and require less involvement by the Court. 

II. ARGUMENT

A. The Government Previously Represented that Documents Would Not 

Be Disclosed to Its Prosecution Team Until After Defendants Had 

Opportunity to Object and the Court Conducted In Camera Review.

The Government’s response to Defendants’ Motion (Doc. 462, “Resp.”) is 

confusing, as the Government’s positions are facially contradictory. 

The Government asserts, first, that magistrate judges in this District “have 

already approved the government’s filter team protocol.” Resp. at 2. However, the 

1

 Defendants previously requested that the Court require the government to disclose and 

explain its proposed process for its “filter team” and privilege review (Docs. 235, 324), 

but the Court denied that request (Doc. 345, at 8). 

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search warrants and applications the Government cites do not describe the particulars of 

any protocol, except to say generally that the government would use a “Filter Team” that 

would review documents for privilege and would not disclose them to the “Investigative 

Team” until Defendants had opportunity to object and the Court reviewed the documents 

in camera. More specifically, the Government stated: 

[B]efore the Filter Team submits any materials to the Court in camera and 

moves for their disclosure to the Investigative Team, the Filter Team will 

confer with counsel for the targets of the investigation and counsel will 

have an ability to file objections with the Court. 

Doc. 462-1, at 6; see also Doc. 462-2, at 6. 

Despite its prior representations that its “filter team” would not disclose 

documents until after Defendants had opportunity to object and the Court considered the 

documents in camera, the Government says that following the procedures it proposed 

“would cause unnecessary delay.” Resp. at 4.2 The Government’s position now is that 

the “filter team” should be permitted to turn over any and all documents it believes are 

not privileged, with no notice to or review by Defendants. While the Government 

asserted before that documents would not be disclosed to the “prosecution team” until 

after in camera review, the Government now says the Court’s oversight and review 

should be avoided. The Government also represented before that it would afford 

Defendants’ counsel “an ability to file objections with the Court,” but obviously that 

means nothing if, as the Government now advocates, its “filter team” turns over 

documents to the “prosecution team” without telling Defendants’ counsel or providing 

the documents before disclosure. 

2

 As discussed below, this is not true—requiring the “filter team” to provide the 

documents it proposes to disclose should considerably reduce the documents in dispute, 

thereby requiring less involvement of the Court and promoting efficiencies. 

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B. Case Law Reflects that It Is a Prerequisite of a “Filter Team” Process 

that the Government Provide to Defendants Documents Proposed to 

be Disclosed, to Allow Meaningful Opportunity to Object. 

While most courts have disfavored “taint teams,”3 even those adopting the 

minority view have carefully defined and directed processes the government must 

follow to ensure protection of attorney-client privilege and due process rights. As the 

DOJ itself has written, “courts have generally indicated that evidence screened by a filter 

team will be admissible only if the government shows that its procedures adequately 

protected the defendants’ rights and no prejudice occurred.” U.S. Dept. of Justice, 

Criminal Division, Computer Crime & Intellectual Property Section Search & Seizure 

Manual, at 111 (3d ed. Sept. 2009) (citing United States v. Neill, 952 F. Supp. 834, 840-

42 (D.D.C. 1997), and United States v. Hunter, 13 F. Supp. 2d 574, 583 (D. Va. 1998)). 

In particular, courts routinely require that government “taint teams” must first 

provide to defendants the documents they propose to disclose before turning them over 

to the “prosecution team,” to allow defendants an opportunity to contest with the Court 

privilege calls made by the “taint team.” See, e.g., In re Search of 5444 Westheimer Rd. 

Suite 1570, Houston, Texas, on May 4, 2006, 2006 WL 1881370, at *2 (S.D. Tex. July 6, 

2006) (requiring taint team to identify all potentially privileged documents to allow the 

target “the opportunity to challenge the taint team’s privilege determination in Court 

before the documents are given to the prosecution team”); United States v. Grant, 2004 

WL 1171258 (S .D.N.Y. May 25, 2004) (requiring taint team to provide documents to 

defendants to allow them to object to any privilege determinations and to ensure the 

Court would resolve any disputes before materials were turned over to the prosecution 

team); In re Ingram, 2012 WL 6840538, at *3-4 & n.26 (E.D. La. Apr. 30, 2012) (courtapproved protocol required government to identify documents to give the target “the 

opportunity to challenge any privilege determinations before the e-mails are disclosed to 

3

 R. Behm, E. Mahr & J. Schomig, “Trust Us”: Taint Teams and the Government’s 

Peek at Your Company’s Privileged Documents, 28 No. 5 ACC Docket 74 (Association 

of Corporate Counsel June 2010) (noting that “courts have disfavored taint teams”). 

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the prosecuting AUSAs,” and directing that “this Court [will] perform an in camera 

review of any documents when the parties dispute whether an applicable privilege 

applies”); Heebe v. United States, 2012 WL 3065445, at *3 (E.D. La. July 27, 2012) 

(“Case law suggests that a clean team using the proper procedure will review documents 

and distinguish those which are potentially privileged from those which it believes are 

not privileged, at which point the party to whom the documents belong is able to review 

the documents and identify any objections.”).4

This has been called “an essential component—a sine qua non—of a valid taint 

team procedure.” Preventive Med. Assocs., Inc. v. Commonwealth, 992 N.E.2d 257, 

271–72 (Mass. 2013). “The defendants’ involvement in the review procedure in 

particular is a crucial check against the potential for mistakes or abuse by the taint 

team.” Id.; see also In re Grand Jury Subpoenas, 454 F.3d 511, 523 (6th Cir. 2006) 

(where holders of privilege would have had no opportunity to dispute taint team’s 

privilege determination, court “[did] not see any check in the proposed taint team review 

procedure against the possibility that the government’s team might make some false 

negative conclusions, finding validly privileged documents to be otherwise”). Indeed, 

even the DOJ itself suggests that “defense counsel [be allowed] to review the output of 

the filter team to identify those documents for which counsel intends to raise a claim of 

4 See also United States v. SDI Future Health, Inc., 464 F. Supp. 2d 1027, 1039 (D. Nev. 

2006) (“Because the Government did not provide or implement any procedure for 

notifying SDI of the taint attorney’s privilege decisions or afford SDI an opportunity to 

challenge those determinations in court before the documents were provided to the 

prosecution team, it is doubtful that the court would have approved the Government’s 

taint procedures if SDI had challenged them.”); United States v. Warshak, 2007 WL 

1100434, at * 1 (S.D. Ohio Apr. 10, 2007) (requiring all potentially privileged 

documents be produced to defendants to allow them to “review such materials and seek 

judicial intervention prior to any disclosure to the prosecution”); United States v. Taylor, 

2010 WL 2924414, at *1 (D. Me. July 16, 2010) (amending filter team protocol to add 

“a proviso that [the defendant] be afforded the opportunity to seek court review prior to 

the turnover of any arguably privileged documents to the prosecution”). 

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privilege.” DOJ Computer Crime & Intellectual Property Section Search & Seizure 

Manual, at 111.5

Here, the Government states that “the Filter Team will confer with counsel for the 

affected parties, as appropriate, and counsel will have the ability to file objections with 

the Court.” See Doc. 462-2, at 6-7; see also Resp. at 2. It should not be left to the 

Government to determine whether and when it thinks it is “appropriate” to provide 

notice to Defendants. In any event, the case law makes clear the Government must 

identify and provide the specific documents its “filter team” proposes to produce to the 

“prosecution team,” and a vague commitment merely to “confer” with Defendants’ 

counsel is a far cry short of what courts have required. 

C. Requiring the Government to Identify to Defendants Documents the 

Filter Team Proposes to Disclose Will Improve Efficiency. 

Finally, the Government contends that if it is required to identify and provide to 

Defendants the documents the “filter team” proposes to turn over to the prosecutors, this 

“would eliminate all efficiencies ... because it would require three separate reviews” and 

require the “Court to shoulder the burden of reviewing all material.” Resp. at 4 

(emphasis in original). It is frankly difficult to understand what the Government is 

talking about, as courts recognize—and the DOJ itself has said—that it is more efficient 

for defendants to have the opportunity to see documents a “filter team” proposes to 

disclose and then to be able to object to selected documents. See, e.g., United States v. 

Grant, 2004 WL 1171258, at *3 (procedure of initial review by Government’s privilege 

team followed by Defendants having opportunity to review and assert objections 

concerning selected documents proposed to be produced “will narrow the disputes to be 

adjudicated and eliminate the time required to review the rulings of the special master or 

magistrate judge”); accord In re Search of 5444 Westheimer Rd., 2006 WL 1881370, at 

5 See also U.S. Dept. of Justice, United States’ Attorneys Manual § 9-13.420 (indicating 

that in searches of attorney files, prosecutors should consider “afford[ing the subject] an 

opportunity to participate in the process of submitting disputed documents to the court 

by raising specific claims of privilege”). 

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*2; see also DOJ Computer Crime & Intellectual Property Section Search & Seizure 

Manual, at 111 (“hav[ing] defense counsel review the output of the filter team to 

identify those documents for which counsel intends to raise a claim of privilege” helps 

“limit the amount of potentially privileged material in dispute”). 

Following the customary practice here, as Defendants urge, will narrow the 

documents in dispute and at least reduce if not eliminate the need for Court involvement. 

The Government’s “filter team” would provide to Defendants’ counsel those documents 

it believes are not privileged (and that it proposes to turn over to the “prosecution 

team”). This presumably will be a small portion of the 10,000-plus documents the 

“filter team” has segregated as potentially privileged—likely the overwhelming majority 

of documents to or from attorneys will be privileged.6 Defendants’ counsel would then 

review this subset. If documents are not privileged, counsel for Defendants and the 

“filter team” presumably can reach agreement about disclosure. The Court would not 

have to intervene or conduct in camera review except as to those remaining documents 

about which the parties still have a dispute regarding privilege. 

In contrast, under the process the Government apparently advocates—i.e., that its 

“filter team” would have the final say about disclosure of any documents to the 

“prosecution team”—the Court would be called upon to review all such documents and 

address privileged determinations for each one. This is so because the Government’s 

improper access to privileged communications is an error of constitutional significance, 

and, to protect against such errors and prejudices, Defendants would have no choice but 

6

 Documents that the “filter team” believes are privileged should be provided to 

Defendants and purged from the Government’s document collection, because the 

Government has no right to have or continue to hold privileged materials. This too is a 

customary provision of a taint team review protocol. See In re Grand Jury Subpoenas, 

454 F.3d at 517 (noting that the Government’s proposed protocol called for returning 

privileged documents to the subpoenaed party and defendants, to help avoid the “leaking 

of privileged materials to investigators”). 

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to ask that the Court review and assess privilege determinations for all documents before 

they are disclosed.7

III. CONCLUSION 

To the extent the Court has determined to allow use of a “filter team” for review 

of privileged communications, it should require that the Government follow procedures 

as called for by the case law to ensure fairness and reduce the risk of prejudice. In 

addition to requiring that the Government’s “filter team” be wholly separate from and 

not communicate with its “prosecution team,”8 the Court should direct that: 

1. Any and all privilege calls made by the government’s filter team must respect 

this Court’s rulings that communications among or involving Messrs. Ferrer, 

Larkin, Lacey, their companies, and counsel are privileged, and Ferrer cannot 

waive these privileges. See, e.g., Doc. 345 at 4. The Government has agreed 

this restriction is appropriate. Resp. at 3. 

2. The “filter team” must segregate attorney-client and work product 

communications it believes are not privileged before turning those materials 

over to the government’s “prosecution team.” The Government agrees to this 

as well. Resp. at 3. 

3. The “filter team” must provide to Defendants all documents it believes to be 

privileged and purge those documents from the Government’s collection of 

materials. 

4. The “filter team” must produce any and all documents it believes are not 

privileged (and proposes to turn over to the “prosecution team”) to 

Defendants’ counsel for review and to permit objections. 

7

 And, to be clear, Defendants hereby make this request in the alternative, if the Court 

decides not to follow the customary practice of allowing Defendants to review and make 

objections to the documents the “filter team” would disclose. 

8

 Defendants’ counsel have requested that the Government identify the individuals who 

will serve on the “filter team,” and the Government’s counsel has agreed to do so when 

the team is established and before it resumes work. 

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5. Counsel for the parties should meet and confer about any privilege claims or 

objections Defendants assert, to attempt to narrow or eliminate disputes. 

6. As to any remaining disputes, Defendants may seek relief from the Court (or a 

magistrate, as the Court may direct), including by way of in camera review of 

selected, disputed documents. 

7. The Court will then rule on disputed privilege claims and whether given 

documents may be disclosed to the “prosecution team.” 

DATED this 27th day of February, 2019. 

LIPSITZ GREEN SCIME CAMBRIA LLP 

By: s/ Paul J. Cambria, Jr. 

Paul J. Cambria, Jr. 

Erin McCampell 

Counsel for Defendant Michael Lacey 

BIENERT, MILLER & KATZMAN, PLC 

By: s/ Thomas H. Bienert, Jr. 

Thomas H. Bienert, Jr. 

Whitney Z. Bernstein 

Counsel for Defendant James Larkin 

DAVIS WRIGHT TREMAINE LLP 

By: s/ James C. Grant 

James C. Grant 

Counsel for Defendant 

Michael Lacey and Jim Larkin

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CERTIFICATE OF SERVICE 

I hereby certify that on February 27, 2019, a true and correct copy of the 

foregoing document was electronically filed with the Clerk of the United States District 

Court of the District of Arizona by using the CM/ECF system, and that service will be 

accomplished by the CM/ECF system to all counsel of record. 

s/ James C. Grant 

James C. Grant 

Case 2:18-cr-00422-DJH Document 478-1 Filed 02/27/19 Page 10 of 10