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September 22, 2016

D.C. Court Ditches Backpage.com's Privilege Claims for Subpoenaed Documents

WASHINGTON, D.C.—For several months now, Backpage.com has been mired in a dispute with the Senate Permanent Subcommittee on Investigations, which has been grilling Backpage CEO Carl Ferrer over allegations that the online hookup service has allowed some postings offering sex with trafficked women. Ferrer resisted providing the subcommittee with various Backpage-created documents including its standards for accepting or rejecting employment or for-sale ads that might aid such trafficking. Earlier this year, Backpage had sued in district court to quash the subcommittee's subpoena, but the suit was rejected, most recently by the U.S. Supreme Court just 11 days ago. At that point, Ferrer filed a motion for an extension of time, which he said was needed to amass the documents, stating that he had spent the previous month "prepar[ing] for production all responsive, nonprivileged documents" but couldn't have them all together by the Sept. 13 deadline. But that adjective "nonprivileged" created yet another firestorm in the subcommittee, calling the concept "outrageous" and demanding that Ferrer produce ALL relevant documents regardless of whether they were attorney-client work product or not. According to an article by attorney Brian D. Smith of the D.C. firm of Covington & Burling, LLC, the subcommittee argued that "Ferrer never hinted that he intended to assert new privileges if he lost" his First Amendment-based motion, though Ferrer himself countered that he had told the subcommittee that he would be claiming privilege on some documents in filings dated, at the latest, in November 2015. "Congress has consistently maintained that it does not recognize common law, court-created privileges, including the attorney-client privilege," Smith opined in his article. "Congress’s position is rooted in the Constitution’s separation of powers and the inherent legislative authority to conduct investigations. Privilege disputes are rare, but when they have occurred, Congress has usually prevailed." However, earlier this week, a judge of the D.C. District Court ruled that, in fact, Ferrer had waived any claim of privilege he may have had by not having claimed it earlier in the proceedings, and that neither he nor his attorney had filed a "privilege log" stating for which particular documents privilege was being claimed. Smith's article suggests that there is no hard-and-fast rule as to when a claim of privilege must be asserted, and he further questioned whether Ferrer even had time to compose a privilege log, given the short amount of time between Congress's subpoena and the time a response was required—in this case, just 22 days. But the D.C. court took a hard line on the issue. "This was not a suggestion or a recommendation," the court wrote in its ruling. "Failure to do so constituted a waiver of the claimed privileges." However, later in the ruling, the court did suggest that the privilege could have been asserted later in the proceedings, and that Ferrer had "numerous opportunities" to do so and to produce a log "before the court entered its order compelling production." In his article, Smith argues that "it is not possible to produce a full privilege log until the productions are complete," and concludes, "We wonder whether Ferrer’s case may finally lead to a direct court ruling on Congress’s position on attorney-client privilege," though he felt that such a ruling was unlikely. But, sayeth Smith, "Then again, a Supreme Court ruling on a constitutional challenge to a congressional subpoena also seemed unlikely not too long ago." It is not known whether Ferrer will again appeal this decision to the D.C. Circuit, and if unsuccessful there, again to the Supreme Court—but attorneys everywhere will likely be following this interesting battle.

 
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