United States District Court, D. Arizona
ORDER
HONORABLE STEVEN P. LOGAN UNITED STATES DISTRICT JUDGE.
Before
the Court is the Government's Motion for Access to the
Joint Representation and Joint Defense Agreements Previously
Submitted by Defendants Michael Lacey and James Larkin for In
Camera Review (the “Motion”). (Doc. 354) The
Motion was fully briefed on January 4, 2019. For the reasons
set forth below, the Motion is granted in part and denied in
part.
I.
Background
On
October 12, 2018, the Court issued an order denying the
Government's motion to disqualify (“Motion to
Disqualify”) the law firm of Henze Cook Murphy from
representing Defendant Michael Lacey and the law firm of
Davis Wright Tremaine from representing Lacey and Defendant
James Larkin. (Doc. 338) On October 18, 2018, the Court
issued an order denying the Government's motion to
resolve attorney-client privilege issues. (Doc. 345) In each
of these orders, the Court relied on two documents: (i) a
Common Interest and Litigation Management Agreement (the
“JRA”), or joint representation agreement; and
(ii) a joint defense agreement (the “JDA”). The
JRA and JDA (together, the “Defense Agreements”)
were submitted to the Court for in camera review as exhibits
to the Defendants' response to the Motion to Disqualify.
(Doc. 180 at 12) The Government did not object to the
Court's in camera review of the Defense Agreements at any
point prior to the Court's rulings on the
Government's motions. On October 26, 2018, the Government
filed the Motion seeking access to the Defense Agreements and
a Joint Engagement Letter dated December 12, 2016 (the
“Engagement Letter”), all of which were exhibits
submitted with the Defendants' response to the Motion to
Disqualify.
II.
Discussion
The
Government seeks access to the Defense Agreements on the
basis that (i) the Defense Agreements are not protected by
attorney-client or attorney work product privilege, and (ii)
the Court's review of the Defense Agreements played a
central role in denying two of the Government's motions.
(Doc. 354 at 2-8) The Government also argues that any
privilege that may have attached to the Defense Agreements
has been waived through various arguments made by the
Defendants in this case. (Doc. 354 at 9-10) In response, the
Defendants argue that (i) the Government has waived its right
to seek access to the Defense Agreements because the request
is untimely; (ii) the Motion constitutes an improper attempt
to relitigate the Government's earlier motions; and (iii)
the Defense Agreements are protected by the attorney-client
privilege. (Doc. 408)
The
Government has not directed the Court to any controlling or
persuasive authority that excuses its delayed request for
access to the Defense Agreements. The Government did not
object to the Defendants' submission of the Defense
Agreements for in camera review; therefore, the Court is
confident in finding that the Government has now waived that
objection. United States v. Nunez, 223 F.3d 956, 958
(9th Cir. 2000) (stating that as a general matter, the
government may waive certain defenses by not raising them in
a timely manner). There is very limited precedent discussing
the proper timing of objections to evidence submitted to a
court for in camera review in the context of a criminal case.
However, there is precedent demonstrating how other courts
have handled challenges to documents submitted for in camera
review. United States v. Whitworth, 856 F.2d 1268,
1276-77 (9th Cir. 1988) (stating that defendant's failure
to object to in camera review material was not reversible
error); Peals v. Terre Haute Police Dep't, 535
F.3d 621, 631 (7th Cir. 2008) (stating that a defendant's
failure to object to a court's in camera review of
certain personnel files in a criminal case meant that the
defendant was not prejudiced for not having access to the
files). In each of these instances, the challenges to the in
camera review occurred before the respective courts reviewed
the evidence at issue, and certainly not four months after
the documents were submitted, reviewed, and then incorporated
into a ruling. The Court finds that the Government cannot
seek access to the Defense Agreements on the basis of
fairness when it did not challenge the submission of the
Defense Agreements for in camera review during the course of
active briefing. The Government's argument that the
Defense Agreements are “highly relevant” only
accentuates the fact that the Government should have brought
its objection to the Court's in camera review prior to
the Court's ruling.
Furthermore,
the Court finds that the Defendants have demonstrated that
the Defense Agreements are protected under the
attorney-client privilege. The proper procedure for asserting
the attorney-client privilege as to particular documents is
to submit them in camera for the Court's inspection and
provide an explanation of how the information fits within the
privilege. In re Grand Jury Witness, 695 F.2d 359,
362 (9th Cir. 1982). It is well settled that the identity of
the client, the amount of the fee, the identification of
payment by case file name, and the general purpose of the
work performed are usually not protected from disclosure by
the attorney-client privilege. Clarke v. Am. Commerce
Nat. Bank, 974 F.2d 127, 129 (9th Cir. 1992). However,
the client's ultimate motive for litigation, motive for
retention of an attorney, litigation strategy, the specific
nature of the services provided, and the confidential
communications between attorney and client made in order to
obtain legal assistance are privileged. Grand Jury
Witness, 695 F.2d at 362; Clarke, 974 F.2d at
129. The burden of establishing that the attorney-client
privilege applies to the documents in question rests with the
party asserting the privilege. Clarke, 974 F.2d at
129.
The
Defendants submitted the Defense Agreements as exhibits to
their pleading in response to the Government's Motion to
Disqualify. (Doc. 180) In the pleading, the Defendants
asserted that the Defense Agreements “recognized that
the parties shared interests in defending claims related to
Backpage.com . . . [and] spelled out the parties'
undertakings to retain joint counsel, share confidential
information, and waive potential conflicts of
interest.” (Doc. 180 at 13) Furthermore, the Defense
Agreements “requested that [Davis Wright Tremaine] act
as joint counsel . . . in connection with the California
criminal case or other proceedings.” (Doc. 180 at 7-8;
Doc. 235 at 13) The Court finds that the information
described in the Defendants' pleadings demonstrates that
the Defense Agreements go far beyond simply identifying
parties, listing information related to fees and payments,
and discussing the attorney services to be provided
generally. It is clear on the face of the pleadings that the
Defense Agreements themselves constituted a trial strategy by
contracting for a conglomerate of parties to band together
for a common defense in the California litigation and future
potential litigations. Per the pleadings, the Defense
Agreements discussed the parties' common interests in
defending the California litigation and desire to coordinate
a joint defense and share confidential information. (Doc. 235
at 13) Furthermore, the Court's in camera review of the
Defense Agreements finds that there is information present in
the Defense Agreements that rises to the level of defense
strategy. Therefore, the Court finds that the Defendants have
met their burden of demonstrating that the Defense Agreements
were privileged. Accordingly, the Court finds that the
Defense Agreements are protected by the attorney-client
privilege, and the Government's Motion will be denied in
part as it pertains to the JRA and JDA.
The
stark difference between the Engagement Letter and the
Defense Agreements helps demonstrate the Court's findings
more thoroughly. The Court finds that the information
contained in the Engagement Letter is exactly the type of
bare bones recitation of parties, fees, and general purpose
of representation that is not protected by the attorney-
client privilege. Clarke, 974 F.2d at 129 (stating
that the identity of the client, the amount of the fee, the
identification of payment by case file name, and the general
purpose of the work performed are usually not protected from
disclosure by the attorney-client privilege.) The Engagement
Letter mirrors a version of the most common initial
communication between lawyer and client, and the Court does
not find that the information contained in the Engagement
Letter has any bearing on legal planning, strategy or motive
for retaining counsel. Accordingly, the Court will grant the
Government's Motion as it applies to the Joint Engagement
Letter dated December 12, 2016, that was filed as Exhibit A
to the Declaration of James C. Grant in Support of Opposition
to United States' Motion to Disqualify Counsel and
submitted to the Court for in camera review.
Finally,
the Government argues that any privilege protecting the
Defense Agreements has been waived. In determining whether
attorney-client privilege has been waived, a court considers:
(i) whether the party is asserting the privilege as the
result of some affirmative act; (ii) whether through this
affirmative act, the asserting party puts the privileged
information at issue; and (iii) the court evaluates whether
allowing the privilege would deny the opposing party access
to information vital to its defense. Home Indemnity Co.
v. Lane Powell Moss and Miller, 43 F.3d 1322, 1326 (9th
Cir. 1995); United States v. Amlani, 169 F.3d 1189,
1195 (9th Cir. 1999). The Court finds that the Defendants
have not invoked an implicit waiver of the attorney-client
privilege based on this standard. First, the Court finds that
responding to the Government's Motion to Disqualify
constitutes an affirmative act. However, the Court finds that
the Defendants did not put the entirety of the privileged
information in the Defense Agreements at issue. As discussed
above, the Defense Agreements address several aspects of the
Defendants' agreement to move forward in future
litigation as one group. The waivers at issue in the Motion
to Disqualify and the Motion to Resolve Attorney-Client
Privilege Issues are only one part of the overall agreement,
and the Defendants have not summarized other vital parts of
the Defense Agreements in any past pleadings or put those
sections at issue in this case. Finally, the Court finds that
denying the Government access to the Defense Agreements does
not deny it access to any information that is vital to the
prosecution of this case. The contents of the Defense
Agreements are not essential pieces of evidence necessary to
any element of any offense that the Government has the burden
of proving in this criminal case. Accordingly, IT IS
ORDERED
1. That
Government's Motion for Access to the Joint
Representation and Joint Defense Agreements Previously
Submitted by Defendants Michael Lacey and James Larkin for In
Camera Review (Doc. 354) is granted in part
as it applies to the Engagement Letter. Counsel for the
Defendants shall provide a copy of the Engagement Letter to
counsel for the Government within 21 days of this Order.
2. That
Government's Motion for Access to the Joint
Representation and Joint Defense Agreements Previously
Submitted by Defendants Michael Lacey and James Larkin for In
Camera Review ...