United States District Court, D. Arizona
Honorable Steven P. Logan United States District Judge.
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. 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
Motion for Disclosure
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
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)
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)
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 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).
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.
IT IS ORDERED that the Defendants'
Motion (Doc. 202) is denied as moot.
Defendants Scott Spears (Doc. 206),
James Larkin (Doc. 208), John “Jed” Brunst (Doc.
209), Andrew Padilla (Doc. 210), and Joye Vaught (Doc. 211)