Case 2:18-cr-00422-DJH Document 1825 Filed 10/03/23 Page 1 of 4
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`Jonathan M. Baum (admitted Pro Hac Vice)
`STEPTOE & JOHNSON LLP
`One Market Plaza, Steuart Tower Ste 1070
`San Francisco, CA 94105
`Tel: (415) 365-6700
`Fax: (415) 365-6700
`jbaum@steptoe.com
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`Tahir L. Boykins (admitted Pro Hac Vice)
`STEPTOE & JOHNSON LLP
`633 West Fifth Street, Suite 1900
`Los Angeles, CA 90071
`Tel: (213) 439-9437
`Fax: (213) 439-9599
`tboykins@steptoe.com
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`Attorneys for Movant
`CARL FERRER
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`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF ARIZONA
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`CASE NO. CR-18-422-PHX-DJH
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`MOVANT CARL FERRER’S MOTION
`FOR A PROTECTIVE ORDER
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`[Filed concurrently herewith Declaration of
`Jonathan Baum ISO Movant Carl Ferrer’s
`Motion for A Protective Order]
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`United States of America,
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`Plaintiff,
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`v.
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`Michael Lacey, et al.,
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`Defendants.
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`1 CASE NO. CR-18-422-PHX-DJH
`MOVANT CARL FERRER’S MOTION FOR A PROTECTIVE ORDER
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`Case 2:18-cr-00422-DJH Document 1825 Filed 10/03/23 Page 2 of 4
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`I.
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`INTRODUCTION
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`Carl Ferrer files this motion to assert the attorney-client privilege on his own behalf.
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`During the course of cross-examination in this case, defense counsel sought to introduce a
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`privileged memorandum sent from Mr. Ferrer to his prior lawyer, James Grant of Davis
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`Wright Tremaine LLP, which the defense presumably obtained from Mr. Ferrer’s former
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`lawyer, who also represented the defendants.1 While the Court properly excluded this
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`exhibit, the defendants recently filed another motion (Dkt. No. 1822), indicating that they
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`intend to continue to seek to violate Mr. Ferrer’s attorney-client privilege, his marital
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`communication privilege, and potentially other privileges.
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`Mr. Ferrer hereby objects to any question or exhibit that intrudes upon privileged
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`communications of any kind.2
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`II.
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`ARGUMENT
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`A. Mr. Ferrer Never Waived His Personal Attorney-Client Privilege
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`In April 2018, Mr. Ferrer signed a limited waiver of the attorney-client privilege on
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`behalf of the companies he formally controlled at that time. This waiver is already on the
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`docket in this case, at Dkt. No. 195-3.
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`This waiver states that Mr. Ferrer “waive[s] each of the Companies’ attorney-client
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`privilege[.]” The waiver, however, expressly states that it does not apply “to any aspect of
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`my personal attorney-client relationship with attorneys who have represented me in the
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`past[.]” Id. Mr. Grant played many roles during the history of Backpage, but at the time of
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`this communication, Mr. Grant served as Mr. Ferrer’s personal counsel in the criminal case
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`1 The Defendants appear to have obtained this document in spite of Davis Wright Tremaine
`assuring Judge Logan in 2018 that it would maintain Mr. Ferrer’s attorney-client privilege. See
`Dkt. No. 10 (“Moving forward, the Court will rely on the representations of HCM, DWT, and
`their respective counsel that the firms will continue to preserve the confidences of Ferrer as a
`former client, create ethical walls where necessary, refrain from engaging in trial preparation or
`participating as trial counsel, and only participate in the limited capacity set forth in the
`pleadings, without an order from the Court.”)
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` To the extent necessary, Mr. Ferrer also authorizes the Government to assert the attorney-client
`privilege on his behalf. See United States v. Martoma, 962 F.Supp.2d 602, 605 (S.D.N.Y. Aug.
`23, 2013) (Government has standing to assert the attorney-client privilege where a witness
`“authorize[s] the Government to assert those rights on his behalf”).
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`2 CASE NO. CR-18-422-PHX-DJH
`MOVANT CARL FERRER’S MOTION FOR A PROTECTIVE ORDER
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`Case 2:18-cr-00422-DJH Document 1825 Filed 10/03/23 Page 3 of 4
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`filed against him in Sacramento County, California. See Exhibit A (Sacramento Superior
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`Court Criminal Pleading title page where Grant is identified as “Counsel for Defendants
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`Carl Ferrer, Michael Lacey and James Larkin.”). The document, therefore, is protected by
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`the attorney-client privilege.3
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`B.
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`Defendants’ Sixth Amendment Rights Do Not Trump Mr. Ferrer’s
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`Attorney-Client Privilege
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`The attorney-client privilege is “one of the oldest recognized privileges for
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`confidential communications,” Swidler & Berlin v. United States, 524 U.S. 399, 403
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`(1998). The Ninth Circuit has held that a defendant's right to cross-examine an adverse
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`witness is not unlimited. Hayes v. Ayers, 632 F.3d 500, 518 (9th Cir. 2011). “[T]he
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`Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-
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`examination that is effective in whatever way, and to whatever extent, the defense might
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`wish.” Id. (emphasis in original); (quoting Delaware v. Van Arsdall, 475 U.S. 673, 679
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`(1986).) Here, permitting the defense to violate Mr. Ferrer’s attorney-client privilege is not
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`justified.
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`III. Conclusion
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`Accordingly, Mr. Ferrer requests that the Court issue a protective order prohibiting
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`Defendants from violating his attorney-client privilege or other applicable privileges.
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`Dated: October 3, 2023
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`STEPTOE & JOHNSON LLP
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`By: /s/ Jonathan Baum
`Jonathan Baum (admitted Pro Hac Vice)
`Tahir L. Boykins (admitted Pro Hac Vice)
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`Attorneys for Movant Carl Ferrer
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`3 The Defendants in this case in 2018 actually sought to block Mr. Ferrer from executing even
`this limited waiver. Judge Logan agreed with their request at that time, holding that that “the
`materials shared between the parties to the JDA are to be protected from disclosure unless the
`disclosing party first obtains the written consent of all parties who may be entitled to a claim of
`privilege over the materials.” (Dkt. No. 345, at 4.) Defendants cannot now make the opposite
`argument.
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`3 CASE NO. CR-18-422-PHX-DJH
`MOVANT CARL FERRER’S MOTION FOR A PROTECTIVE ORDER
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`Case 2:18-cr-00422-DJH Document 1825 Filed 10/03/23 Page 4 of 4
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`CERTIFICATE OF SERVICE
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`I hereby certify that on October 3, 2023, I electronically transmitted the attached
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`document to the Clerk’s Office using the CM/ECF System for filing and transmittal of a
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`Notice of Electronic Filing to the CM/ECF registrants who have entered their appearance
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`as counsel of record.
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`/s/ Debbie DeRivero
`Debbie DeRivero
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`4 CASE NO. CR-18-422-PHX-DJH
`MOVANT CARL FERRER’S MOTION FOR A PROTECTIVE ORDER
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