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IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA

 

 On June 28, 2018, Defendant Michael Lacey (“Lacey”) filed a motion (the 

“Motion”) seeking discovery of certain issues related to the privilege waiver of Carl Ferrer 

(“Ferrer”), the CEO of Backpage.com, LLC (“Backpage”). (Doc. 202) The Motion was 

fully briefed on August 16, 2018. (Docs. 216, 266) Several Defendants filed joinders to 

the Motion.1

 The Court heard oral argument on the Motion at a hearing on October 5, 

2018. For the reasons set forth below, the Motion is denied as moot. 

A. Motion for Disclosure 

Lacey moves for an order requiring the Government to produce all documents 

related to Ferrer’s waiver of Backpage’s attorney-client and work product privilege. (Doc. 

202) Lacey argues that disclosure of these documents is necessary in order for him to 

defend, and for the Court to make an informed decision on, the Government’s motion to 

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Defendants Scott Spears (Doc. 206), James Larkin (Doc. 208), John “Jed” Brunst 

(Doc. 209), Andrew Padilla (Doc. 210), and Joye Vaught (Doc. 211) filed joinders to the Motion. 

United States of America, 

 

Plaintiff, 

vs. 

Michael Lacey, et al., 

Defendants. 

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No. CR-18-00422-PHX-SPL 

ORDER 

 

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disqualify counsel (Doc. 118) and the Government’s motion to resolve attorney client 

privilege issues (Doc. 195). (Doc. 202 at 3, 6) Specifically, Lacey argues that the 

Government is contradicting itself by claiming (i) that Ferrer has waived all attorney-client 

privilege on behalf Backpage and himself in his capacity as CEO of the company, and 

(ii) that the Davis Wright Tremaine law firm and the Henze Cook Murphy law firm must 

be disqualified as counsel because they may use privileged information, which Lacey 

argues has already been waived according to point (i), in the law firms’ defense of the other 

Defendants in this case. (Doc. 202 at 8–9) Lacey argues that precedent does not support 

this type of selective waiver of attorney-client privilege, and if the Government argues that 

attorney-client privilege has been waived by Ferrer, then the motion to disqualify should 

be denied. Accordingly, Lacey argues that discovery is necessary in order to determine the 

scope of Ferrer’s waiver and whether there is any privilege remaining that would require 

disqualification of counsel. (Doc. 202 at 10–11) 

 In response, the Government first argues that the discovery requested by Lacey is 

unnecessary to address the motion to disqualify because this discovery motion was filed 

after Lacey had already filed a response to the motion to disqualify; in fact, the Government 

states that the Motion is an improper sur-reply. (Doc. 216 at 5) Second, the Government 

argues that discovery is not necessary to address the motion to disqualify because the issue 

of whether Ferrer waived attorney-client privilege is irrelevant to disqualification. (Doc. 

216 at 6) Alternatively, the Government argues that the waiver agreement executed by 

Ferrer in cooperation with the Government demonstrates that he never waived his personal 

attorney-client privilege, but only waived this privilege on behalf of Backpage as a 

corporation and on Ferrer’s behalf in his capacity as CEO. (Doc. 216 at 12) 

B. Analysis

 Rule 16 of the Federal Rules of Criminal Procedure grants defendants a broad right 

to discovery, providing that the government must permit a defendant to inspect documents 

within its possession that are material to preparing a defense when requested by the 

defendant. Fed. R. Crim. P. 16 (a)(1)(E)(i). To receive discovery under Rule 16, a 

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defendant “‘must make a threshold showing of materiality, which requires a presentation 

of facts which would tend to show that the Government is in possession of information 

helpful to the defense.’” United States v. Doe, 705 F.3d 1134, 1150 (9th Cir. 2013) (quoting 

United States v. Stever, 603 F.3d 747, 752 (9th Cir. 2010)) However, a district court “has 

wide latitude in controlling discovery.” White v. City of San Diego, 605 F.2d 455, 461 (9th 

Cir. 1979). 

 It is clear to the Court that the Defendants are seeking the discovery requested in the 

Motion for the purpose of bolstering their arguments against the Government’s motion to 

disqualify counsel (Doc. 118) and the Government’s motion to resolve attorney-client 

privilege issues (Doc. 195). The Court denied the Government’s motion to disqualify 

counsel in an Order entered on October 12, 2018. (Doc. 338) The Court denied the 

Government’s motion to resolve attorney-client privilege issues in an Order entered on 

October 18, 2018. (Doc. 345) The primary reasons cited by the Defendants for the 

discovery requested in the Motion were to aid the Court in deciding the issues in the motion 

to disqualify counsel and the motion to resolve attorney-client privilege issues. (Doc. 202 

at 3, 6) The Defendants have not otherwise demonstrated the materiality of the information 

that could be produced in the requested discovery. The Court has already ruled on the 

motion to disqualify counsel and the motion to resolve attorney-client privilege issues in 

the Defendants’ favor, and the Court finds that the Defendants have not set forth any 

additional arguments for why the requested discovery is necessary. Therefore, the Court 

finds that there is no need for the discovery requested in the Motion, and the Motion should 

be denied as moot. 

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Accordingly, 

IT IS ORDERED that the Defendants’ Motion (Doc. 202) is denied as moot. 

 Dated this 19th day of October, 2018. 

Honorable Steven P. Logan 

United States District Judge 

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