Backpage can’t claim privilege on documents subpoenaed by Senate – judge

September 19, 2016

(Reuters) – The Senate subcommittee investigating Internet sex trafficking will get to see how lawyers for the online classified ad site Backpage.com advised the company on its ad screening policies, under a ruling Friday by U.S. District Judge Rosemary Collyer of Washington, D.C., who is overseeing Backpage’s challenge to a Senate subpoena. Judge Collyer held that because Backpage’s lawyers did not assert attorney-client or work product privileges when they contested the subcommittee’s demand for documents and did not prepare a log of protected documents, Backpage waived the right to claim privilege.

Her decision means that communications between Backpage lawyers and other corporate officials must be turned over to the Senate Permanent Subcommittee on Investigations by Oct. 10, the deadline Judge Collyer set for the site to complete its compliance with a subpoena issued to its CEO, Carl Ferrer, in October 2015. Ferrer was previously held in contempt of Congress when he failed to appear before the subcommittee.

Backpage, as you may recall, mounted a broad-scale constitutional attack on the Senate subpoena, which demanded documents detailing how the site polices adult-only ads. Backpage lawyers from Davis Wright Tremaine and Akin Gump Strauss Hauer & Feld argued that the Senate subcommittee’s “broad and punitive investigatory demands” stepped on the site’s First Amendment rights as an Internet publisher. They also claimed the subpoena violated Ferrer’s due process rights.

Judge Collyer refused to quash the subpoena in August. Backpage appealed her decision to the District of Columbia U.S. Circuit Court of Appeals, which denied the site’s motion to stay enforcement. Backpage asked the U.S. Supreme Court to step in, but last week, the justices rejected the stay application.

Out of time after the Supreme Court order, Backpage asked Judge Collyer for an extension of its deadline to complete compliance with the subpoena. The site said it has produced nearly 40,000 documents to the Senate subcommittee after its motion for a stay failed. It also said its document review lawyers were working flat out on the last batch of documents, which came from employees lower down in the company than those whose documents were already produced to the Senate. But according to Backpage, it needed extra time to prepare privilege logs for shielded documents.

Senate subcommittee lawyers pounced on that argument in their response. Backpage hadn’t explicitly cited attorney-client or work product privilege when it contested the subpoena on constitutional grounds, the subcommittee said. “Mr. Ferrer never hinted that he intended to assert new privileges if he lost this litigation – not before the Subcommittee, this court, the court of appeals, or the Supreme Court,” the Senate opposition brief said. “He cannot be allowed now to trot out new objections and privileges that were never raised before this case was litigated to judgment, and thereby create another round of litigation and further delay.”

Backpage, whose legal roster now includes Paul Hastings as well as Davis Wright and Akin Gump (and Perkins Coie on document production), said the Senate was wrong on the facts. The site said it had asserted attorney-client privilege in correspondence with subcommittee lawyers back in November 2015. The Senate even acknowledged at the time that Backpage planned to withhold privileged documents, the site claimed. “The assertion of the attorney-client and work product privileges is hardly news to the (subcommittee), nor is it untimely,” Backpage said.

Judge Collyer, however, ruled that the site failed to preserve the privilege in the November 2015 letters. “These references are insufficient in detail and do not constitute a valid assertion of a common law privilege,” she said. The Senate subpoena required the site’s CEO affirmatively to assert any defenses by the return date, the judge said. In response, Ferrer challenged the constitutionality of the subcommittee’s demand. But according to Judge Collyer, none of his briefs, all the way up to the Supreme Court, claimed attorney privilege. Nor did he prepare and submit a log of documents supposedly covered by the privilege – a fatal mistake, the judge said.

“The filing of a privilege log in response to a documentary subpoena is required by courts and the Federal Rules of Civil Procedure,” she ruled. “Failure to do so constituted a waiver of the claimed privileges.” The judge gave Backpage an extra couple of weeks to turn over all responsive documents to the Senate subcommittee, but pointed out that the job is now much less complicated since attorney privilege applies only to documents related to the subpoena litigation, not to anything predating it.

I emailed Backpage counsel from the three outside firms that signed its most recent briefs. None got back to me.

(Reporting by Alison Frankel)

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