D.C. Circuit Grants Classified Site's Bid to Stay Subpoena

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By Alexis Kramer

Oct. 18 — A federal appeals court Oct. 17 stayed in part a district court order enforcing a Senate subcommittee subpoena for information about how Backpage.com LLC moderates its classified ad site for sex trafficking ( Senate Permanent Subcommittee v. Ferrer , D.C. Cir., No. 16-05274, 10/17/16 ).

The U.S. Court of Appeals for the District of Columbia Circuit stayed the order to the extent that it requires Backpage CEO Carl Ferrer to produce documents that he alleges are protected by the attorney-client or work product privilege. Ferrer will have 24 days to produce all other requested documents.

The D.C. Circuit's decision to grant the stay comes just 11 days after Ferrer was arrested and charged with pimping a minor. Ferrer filed an emergency request three days before the arrest to stay the U.S. District Court for the District of Columbia's order.

The D.C. Circuit and the U.S. Supreme Court in September rejected previous bids by Ferrer to stay enforcement of the subpoena (21 ECLR 37, 9/21/16). Ferrer had argued against the subpoena on First Amendment grounds.

An attorney for Ferrer didn't immediately respond to a Bloomberg BNA request for comment.

Privilege Not Waived: Ferrer

The Senate Homeland Security and Governmental Affairs Permanent Subcommittee on Investigations, as part of its online trafficking investigation, sought to enforce a subpoena requesting documents on Backpage's screening and editing of ads in its adult sections, limitations for users on posting ads and reviewing of user accounts.

After the Supreme Court denied a stay, the district court ordered Ferrer to comply with the subpoena by Oct. 10. The district court also ruled that Ferrer had waived his attorney-client and work product privileges because he failed to file a privilege log, as required by Federal Rule of Civil Procedure 26(b)(5).

Ferrer argued in his Oct. 3 emergency request that he didn't waive the privileges. He said that, until the district court denied his constitutional objections to the subpoena, he had no duty to search documents and produce a privilege log. If Ferrer had prevailed on his First Amendment claims, “the entire question of whether a particular subset of documents was also protected by the attorney-client and work product privileges would have been moot,” he said.

Akin Gump Strauss Hauer & Feld LLP represented Ferrer. The Office of Senate Legal Counsel represented the subcommittee.

To contact the reporter on this story: Alexis Kramer in Washington at akramer@bna.com

To contact the editor responsible for this story: Keith Perine at kperine@bna.com

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