Case 1:16-mc-00621-RMC Document 26 Filed 09/13/16 Page 1 of 18 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA SENATE PERMANENT SUBCOMMITTEE ON ) INVESTIGATIONS, ) ) Applicant, ) Misc. No. 1:16-mc-00621-RMC ) v. ) ) CARL FERRER, ) ) Respondent. ) RESPONDENT CARL FERRER S MOTION FOR AN EXTENSION OF TIME TO COMPLY WITH THE COURT S ORDER ENFORCING SUBPOENA DUCES TECUM For the reasons set forth in further detail in the accompanying Memorandum of Points and Authorities, Respondent Carl Ferrer respectfully moves this Court for an order extending the time for him to comply with this Court s August 5, 2016 order (ECF Nos. 17-18) enforcing requests 1, 2, and 3 of the October 1, 2015 subpoena duces tecum issued to him by the Senate Permanent Subcommittee on Investigations. Respectfully submitted, /s/ Robert D. Luskin Robert D. Luskin Jamie S. Gardner Gerald S. Sachs PAUL HASTINGS LLP 875 15th Street NW Washington, D.C. 20005 Telephone: (202) 551-1700 Steven R. Ross Stanley M. Brand AKIN GUMP STRAUSS HAUER & FELD LLP 1333 New Hampshire Avenue NW Washington, D.C. 20036 Telephone: (202) 887-4343 Robert Corn-Revere DAVIS WRIGHT TREMAINE LLP 1919 Pennsylvania Avenue NW, Suite 800
Case 1:16-mc-00621-RMC Document 26 Filed 09/13/16 Page 2 of 18 DATED: September 13, 2016 Washington, D.C. 20006 Telephone: (202) 973-4200 Counsel for Respondent Carl Ferrer 2
Case 1:16-mc-00621-RMC Document 26 Filed 09/13/16 Page 3 of 18 TABLE OF CONTENTS Page INTRODUCTION... 1 BACKGROUND... 2 I. Procedural History... 2 II. Mr. Ferrer s Undertakings To Ensure That Backpage Complies With The Order... 4 ARGUMENT... 8 I. The Court Should Grant Mr. Ferrer An Extension Of Time To Comply With The Order... 8 II. Rule 7(m) Conference... 11 CONCLUSION... 12 i
Case 1:16-mc-00621-RMC Document 26 Filed 09/13/16 Page 4 of 18 TABLE OF AUTHORITIES Page(s) Cases * Al-Qahtani v. Obama, 604 F. Supp. 2d 101 (D.D.C. 2009)...10, 11 * Alexander v. F.B.I., 186 F.R.D. 12 (D.D.C. 1998)...10 Cooper v. U.S. Dep t of Justice, No. 99-2513, 2016 WL 1048756 (D.D.C. Mar. 14, 2016)...9 Hale v. Henkel, 201 U.S. 43 (1906), overruled on other grounds, Murphy v. Waterfront Comm n of N.Y. Harbor, 378 U.S. 52 (1964)...10 Woodruff v. McPhie, 593 F. Supp. 2d 272 (D.D.C. 2009)...9 Statutes 28 U.S.C. 1365...2 Other Authorities * FED. R. CIV. P. 6...8, 9 * Cases and authorities chiefly relied upon are denoted with an asterisk. ii
Case 1:16-mc-00621-RMC Document 26 Filed 09/13/16 Page 5 of 18 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA SENATE PERMANENT SUBCOMMITTEE ON ) INVESTIGATIONS, ) ) Applicant, ) Misc. No. 1:16-mc-00621-RMC ) v. ) ) CARL FERRER, ) ) Respondent. ) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF RESPONDENT CARL FERRER S MOTION FOR AN EXTENSION OF TIME TO COMPLY WITH THE COURT S ORDER ENFORCING SUBPOENA DUCES TECUM INTRODUCTION On August 5, 2016, this Court issued an order (the Order ) requiring Carl Ferrer, Chief Executive Officer of Backpage.com, LLC ( Backpage ), to comply with requests 1, 2, and 3 (the Requests ) of a subpoena duces tecum ( Subpoena ) issued by the Senate Permanent Subcommittee on Investigations ( PSI ) within ten (10) days of the date of the Order. See ECF No. 17 at 32; ECF No. 18 at 1. Mr. Ferrer and Backpage immediately undertook measures to segregate, process, auto-search, review, redact, log, and prepare for production all responsive, non-privileged documents. Those labors have continued without interruption even while Mr. Ferrer filed a notice of appeal of the Order and sought stays of the Order pending appeal from this Court, the United States Court of Appeals for the District of Columbia Circuit, and the United States Supreme Court. On September 13, 2016, Mr. Ferrer produced to the PSI approximately 39,000 documents from key custodians and corporate records, in substantial compliance with the Requests and the Order. However, the volume of documents and data required to be processed, reviewed, redacted, and logged renders production of every last 1
Case 1:16-mc-00621-RMC Document 26 Filed 09/13/16 Page 6 of 18 responsive document and complete privilege logs by September 13, 2016 impossible regardless of best efforts. Accordingly, Mr. Ferrer moves the Court for an extension of time to complete full compliance with the Order and Requests, and to apprise the Court of the substantial steps that Backpage has taken to comply with the Order by September 13, 2016, detail the materials Backpage has produced or will soon produce to the PSI in accordance with the Order, and identify with specificity what remains to be done and when through exceptional effort it realistically might be accomplished. The volume of documents and data encompassed by the broad Requests, the detailed redactions of personally-identifiable information from documents (as instructed by the PSI), and the labor-intensive development of privilege logs, as well as Mr. Ferrer s good faith efforts to comply and substantial compliance with the Order and Requests (as detailed below), afford good cause for the proposed extension. BACKGROUND I. PROCEDURAL HISTORY. On March 29, 2016, the PSI filed an application in this Court pursuant to 28 U.S.C. 1365 to enforce three document requests in an October 1, 2015 subpoena issued to Mr. Ferrer in his capacity as CEO of Backpage. See ECF No. 1. Mr. Ferrer raised numerous significant legal arguments challenging the Subpoena s enforceability, including that its commands infringe upon constitutional rights particularly First Amendment rights and deny him due process. Mr. Ferrer presented these arguments both in correspondence with the PSI before it filed this action and in briefing before this Court. See, e.g., ECF No. 8 at 21-45. 1 On August 5, 2016, this Court issued its Order rejecting Mr. Ferrer s arguments and 1 For a more extensive history of the communications between the PSI and Mr. Ferrer that preceded this action, see id. at 11-18. 2
Case 1:16-mc-00621-RMC Document 26 Filed 09/13/16 Page 7 of 18 ordering him to comply with the Requests within ten days. See ECF No. 17 at 32; ECF No. 18 at 1. On August 8, Mr. Ferrer filed a motion to stay the Order pending appeal, see ECF No. 19, and he filed a notice of appeal to the D.C. Circuit on August 9. See ECF No. 20. The Court denied Mr. Ferrer s motion to stay on August 12, 2016. See ECF No. 23. Mr. Ferrer s appeal was docketed in the D.C. Circuit on August 11, 2016. See Senate Permanent Subcommittee on Investigations v. Ferrer, No. 16-5232 (D.C. Cir., docketed Aug. 11, 2016). The next day, August 12, Mr. Ferrer filed an emergency motion in the D.C. Circuit to stay the Order, pending appeal. The D.C. Circuit issued a per curiam order that same day, on its own motion, administratively staying the district court s Order, to permit briefing on the emergency motion. That briefing concluded on August 24, 2016. On September 2, 2016, the D.C. Circuit denied Mr. Ferrer s emergency motion and ordered that the ten-day deadline for complying with the subpoena shall run from the date of this order. See Senate Permanent Subcommittee on Investigations v. Ferrer, No. 16-5232, Doc. No. 1633679 (D.C. Cir., issued Sept. 2, 2016). On September 6, 2016, Mr. Ferrer filed an application to the Chief Justice of the United States Supreme Court for an immediate stay and a stay pending appeal of this Court s Order in the D.C. Circuit. See Ferrer v. Senate Permanent Subcommittee on Investigations, No. 16A236 (filed Sept. 6, 2016). That same day, Chief Justice Roberts issued a temporary stay pending receipt of a response from the PSI, due September 9, 2016, and further order of the Court. On September 13, 2016 the Supreme Court lifted its temporary stay and denied Mr. Ferrer s request for a stay pending appeal. 2 2 Without waiving the issue of whether the Supreme Court s order imposing the temporary stay of enforcement of the Order, as modified by the D.C. Circuit s order, extended 3
Case 1:16-mc-00621-RMC Document 26 Filed 09/13/16 Page 8 of 18 II. MR. FERRER S UNDERTAKINGS TO ENSURE THAT BACKPAGE COMPLIES WITH THE ORDER. Throughout its discussions with the PSI, Backpage requested that the dispute over the PSI s investigatory requests be submitted to a court for judicial review, given the significant constitutional concerns the requests raised. And Backpage repeatedly assured the PSI that, upon proper review and final determination by the courts, it would comply with the requests. See, e.g., ECF No. 1-13 at 3 (November 16, 2015 letter from Backpage counsel to the PSI, stating: [W]e repeat our suggestion that if the Subcommittee seeks additional documents and information from Backpage.com, Subcommittee counsel and Backpage.com s counsel should next discuss the presentation of this issue to the courts for resolution. As we have stated before, a civil statutory mechanism exists for the Subcommittee to present the constitutional issues for judicial determination, and Backpage.com would abide by a final judicial determination of these constitutional questions. ). Indeed, upon the issuance of the Court s Order rejecting its legal arguments, Backpage immediately began taking steps to comply with the Order. 3 These efforts commenced on August 5, 2016 and are ongoing, notwithstanding the pending appeal and motions to stay from the appellate courts. See Declaration of Steven D. Merriman, 2-4 ( Merriman Decl. ). In fact, to date, more than 34 attorneys have been engaged by discovery counsel in the document review and production process (including approximately two dozen working overtime), and discovery counsel have dedicated over 2,880 hours of work on this matter. Id. 6, 17. This diligent effort resulted in a substantial production of documents to the PSI from the time to respond to the Requests, Backpage nonetheless has made a substantial production today, September 13, 2016. 3 In complying with the Order and producing documents responsive to the Requests, Mr. Ferrer does not waive, and hereby expressly preserves, his arguments that the Subpoena is unenforceable and invalid. 4
Case 1:16-mc-00621-RMC Document 26 Filed 09/13/16 Page 9 of 18 key custodians and corporate records on September 13, 2016. Id. 8, 10-11, 14. In addition, another follow-on production from important custodians will be ready for production within two weeks of September 13, 2016. Id. 12, 15. Therefore, as detailed below and in the attached declaration from discovery counsel, the PSI will have all responsive non-privileged documents from the most significant sources by or shortly after the date the Supreme Court denied the stay. It is not possible to produce every responsive document and privilege logs by September 13, however, and Backpage will need an extension of time. Id. 3-5. The PSI seeks responsive documents from January 1, 2010 forward, including the e-mails of all Backpage staff whose duties involved moderating advertisements more than 100 employees. Id. 7. Backpage and its discovery counsel prioritized the collection and review not only to provide responsive documents as quickly as possible, but also to collect and review documents from custodians most likely to have materials responsive to the Requests. Id. 8, 10, 12. With respect to documents from the 2010-2011 timeframe, 4 Backpage s discovery counsel reviewed and prepared for production by September 13, 2016 all corporate documents responsive to the Requests from that time period (more than 5,000 documents in total), from all relevant sources. Id. 8. Those documents have been redacted to remove personally-identifying information. 5 Id. In addition, Backpage prepared for production on September 13, 2016 nearly all responsive documents from the files of Mr. Ferrer, Andrew Padilla (manager of Backpage s 4 Records from all relevant custodians from the 2010-2011 time period were previously collected for use in other litigation and, therefore, were more readily available for review for responsiveness to the Requests. Id. 8. 5 Discovery counsel recently identified additional documents from the 2010-2011 time period from another account that need to be reviewed for responsiveness. Any responsive documents from this data set will be included in the follow-on production expected to be completed within two weeks, as discussed below. See id. 9. 5
Case 1:16-mc-00621-RMC Document 26 Filed 09/13/16 Page 10 of 18 moderation systems which operate to prevent abuse of the website for illicit purposes), and Joye Vaught (supervisor of moderation systems employees), as well as Backpage s central file share and a partial collection of e-mails from Backpage s abuse@backpage.com e-mail account for the 2012-2016 time period. 6 Id. 10. This production was culled from more than 1.5 million documents (over 431 gigabytes of data). Id. Given their positions at the company, these individual custodians are most likely to have documents responsive to the Requests, and discovery counsel thus prioritized this review. Discovery counsel have completed processing, reviewing, and redacting these documents an exercise that yielded more than 33,000 responsive documents that were produced on September 13, 2016. Id. 10-11. Backpage also collected another batch of approximately 358,000 files (5.4 gigabytes of data) from an additional eleven (11) custodians, all Backpage senior moderators, from 2012- present. Id. 12. This production yielded approximately 2,200 responsive, non-privileged documents. Id. The reviewing team has completed review of these documents, but the redaction process is not yet complete. Id. The Subpoena requires redaction of all personal information, see Subpoena, ECF No. 1-7, at 5 (Request 3 does not include the personally identifying information of any Backpage user or account holder ) (emphasis in original), which is extremely labor intensive and time consuming, and it is not possible for discovery counsel to complete redaction of documents in this data set by September 13. Merriman Decl. 12; see id. 5, 10. Discovery counsel expect to complete these redactions in the near future, and responsive documents from these 11 custodians will be produced to the PSI in the follow-on production within two weeks. Id. 12, 15. 6 A small number of documents from this set required additional review and will be produced to the PSI in the follow-on production within two weeks after September 13, 2016. See id. 11. 6
Case 1:16-mc-00621-RMC Document 26 Filed 09/13/16 Page 11 of 18 In sum, then, by September 13, 2016, as a result of a massive commitment of resources, Backpage will have produced the vast majority of the responsive documents in which the PSI is interested almost 39,000 documents in total, with a follow-on production of several thousand more documents within two weeks thereafter, to complete production of responsive, nonprivileged documents from the most important custodians. Given its prioritization of the most relevant custodians and data sets, Backpage has not yet had the opportunity to cull, review, and prepare for production documents from an additional approximately 100 custodians who may (but are less likely to) have unique documents responsive to the Requests. Id. 13. Any responsive documents from these custodians likely are duplicates of items in the production to the PSI on September 13 or the follow-on production. Id. Both of these productions include correspondence of higher-level individuals involved in the moderation process, and therefore likely capture most communications with lower-level moderators. Further, discovery counsel observed a substantial overlap between the documents collected from the five key sources produced on September 13 and the 11 additional custodians whose documents will be included in the follow-on production, and a similar overlap likely will occur with the remaining lower-level custodians. Id. Nonetheless, Backpage is in the process of collecting and processing these documents for review. Review of such a large volume of documents will be time consuming and may well be unlikely to result in a significant number of new, relevant documents beyond the documents produced on September 13 and in the follow-on production. Accordingly, Backpage proposed that without waiving the right to require additional compliance in the future the PSI review the productions of the key custodians and corporate records first, before requiring additional efforts that are less likely to be fruitful. Discovery counsel are continuing to process and will 7
Case 1:16-mc-00621-RMC Document 26 Filed 09/13/16 Page 12 of 18 review these documents at the same diligent pace. However, given the sheer volume of material, the collection, processing, and review of these documents will take several weeks, id., and Backpage will need an extension of time within which to complete the review and production of these documents. Given the large numbers of documents produced on September 13 and in the follow-on production, and the time it will take for the PSI to review and digest these documents, the PSI will not suffer any prejudice from an extension of time to receive any additional documents. Despite a significant commitment of resources, Backpage s ability to fully comply with the Order by September 13 is constrained by limitations on (1) the inherent time it takes to retrieve, process, and cull potentially responsive documents before review can even begin; (2) the time required to individually review potentially responsive documents for actual responsiveness, privilege issues, and personally-identifying information, and, particularly, to carefully complete all privacy redactions to ensure that users personal data is not disclosed; and (3) the bandwidth of the experienced review team, whose many members have been working fervently to complete reviews and productions as soon as possible, but simply cannot complete all review and redactions for all Backpage custodians by September 13. It is for these reasons that Mr. Ferrer respectfully moves the Court for an extension of time to comply with its August 5, 2016 Order, as modified by the D.C. Circuit s September 2, 2016 order and the Supreme Court s September 6, 2016 order. ARGUMENT I. THE COURT SHOULD GRANT MR. FERRER AN EXTENSION OF TIME TO COMPLY WITH THE ORDER. Under Federal Rule of Civil Procedure 6, a court may, for good cause, extend the time for a party to comply with any time period specified in... any... court order if a request is 8
Case 1:16-mc-00621-RMC Document 26 Filed 09/13/16 Page 13 of 18 made[] before the original time or its extension expires. FED. R. CIV. P. 6(a), (b)(1). Mr. Ferrer has made a timely request for an extension and has shown good cause for the request, and the Court should exercise its discretion to extend the deadline for compliance with its Order. See FED. R. CIV. P. 6(b)(1); Woodruff v. McPhie, 593 F. Supp. 2d 272, 276 (D.D.C. 2009) (under Rule 6(b)(1), the court has discretion to grant timely requests for extensions and did so here by... granting... timely requests for two extensions of time ); Cooper v. U.S. Dep t of Justice, No. 99-2513, 2016 WL 1048756, at *18 (D.D.C. Mar. 14, 2016) ( Rule 6(b)(1) s good cause standard is subject to the district court s discretion and does not require a showing of excusable neglect if the opposing party requests the enlargement of time before the original time or its extension expires. ) (citations omitted). Mr. Ferrer has shown good cause for an extension. As soon as this Court entered its Order, Mr. Ferrer and Backpage immediately endeavored to comply. Backpage retained discovery counsel and has engaged over 30 attorneys to process, review, redact, and log potentially responsive documents. As a result of these efforts, Backpage made a substantial production of nearly 39,000 responsive, non-privileged documents from the key custodians and corporate records to the PSI on September 13, 2016, see Declaration of Steven R. Ross, 4, 6 ( Ross Decl. ), and will make a significant follow-on production of at least 2,300 documents within two weeks thereafter. Backpage has demonstrated its commitment to full compliance and seeks only an extension of time within which to finish. Notwithstanding these good faith efforts, Backpage s full compliance with the Requests will not be possible by September 13, due to both human and technological limitations. Discovery counsel simply cannot process and review millions of documents culled from hundreds of gigabytes of data and then redact and prepare for production any responsive, non- 9
Case 1:16-mc-00621-RMC Document 26 Filed 09/13/16 Page 14 of 18 privileged documents in such a short timeframe. As courts have recognized, the task of producing the voluminous amount of material responsive to th[ese] request[s] and a review of the materials for privileged or otherwise protective matter and any redaction necessitate[s] an extension of time within which to respond. Alexander v. F.B.I., 186 F.R.D. 12, 15 (D.D.C. 1998) (granting motion for an extension on this basis). Mr. Ferrer s and Backpage s diligent efforts and good faith intent to comply fully with the Order if given sufficient additional time to do so demonstrate[] good cause for [the] request for extension of time. Al-Qahtani v. Obama, 604 F. Supp. 2d 101, 103-04 (D.D.C. 2009) (finding that the government showed good cause for an extension of time where it had to examine information reviewed by all of the Government s attorneys in preparing the factual returns for all of the Guantanamo detainees a time consuming task before it could fully comply with court order to disclose all exculpatory evidence) (emphases in original). Furthermore, despite Backpage s and discovery counsel s best efforts, production of [all] documents responsive to [these] request[s]... would not be possible until late September 2016 at the earliest, and more likely October. See Alexander, 186 F.R.D. at 15. Impossibility of compliance within the allotted timeframe doubtless constitutes good cause for an extension. See Hale v. Henkel, 201 U.S. 43, 70 (1906), overruled on other grounds, Murphy v. Waterfront Comm n of N.Y. Harbor, 378 U.S. 52 (1964) (where individual objected to subpoena duces tecum in part on the ground that it was impossible for him to collect [the subpoenaed documents] within the time allowed, the Court acknowledged that [h]ad the witness relied solely on [that] ground, doubtless the court would have given him the necessary time ). Notably, Backpage will have substantially complied with the Order by September 13, 2016, as set forth above. Substantial compliance with the Order, too, constitutes good cause for 10
Case 1:16-mc-00621-RMC Document 26 Filed 09/13/16 Page 15 of 18 an extension. See Al-Qahtani, 604 F. Supp. 2d at 103 (noting the government s belief that it had substantially complied with its obligations under the court order but needed more time to examine... information ). Finally, given the volume of documents to be included in the September 13 production, it is likely that Backpage will make additional productions before the PSI has had the opportunity to review and digest all, or even most, of the documents in that initial production. Accordingly, affording Backpage an extension of time to complete those remaining productions will not prejudice the PSI. Backpage assured the PSI that if ordered to do so by the courts, it would comply with the Requests, and it has fully demonstrated its willingness to comply with the Court s Order. In light of the extraordinary efforts undertaken to date, the enormity of the task of collecting, processing, reviewing, redacting, and preparing for production all responsive documents, the relatively brief extension of time necessary to complete the production, and the lack of any prejudice to the PSI, Backpage has amply demonstrated good cause for an extension of time within which to complete its compliance with the Court s Order. Backpage requests that the Court grant an extension through September 26, 2016 for the follow-on production, and through October 28, 2016 for any remaining productions (if the PSI indicates that it still desires them once it receives the September 13 and follow-on production) and all privilege logs. II. RULE 7(M) CONFERENCE. Pursuant to Local Rule 7(m), counsel for Mr. Ferrer and Backpage telephoned staff counsel for the PSI on September 13, 2016 to discuss this matter and sent a letter detailing the extraordinary efforts undertaken thus far to produce all responsive documents by September 13, 2016. See Ross Decl. 2-4 & Exhibit A. Counsel for Mr. Ferrer and Backpage requested agreement to an extension to September 26, 2016 for the follow-on production and that the PSI 11
Case 1:16-mc-00621-RMC Document 26 Filed 09/13/16 Page 16 of 18 defer any consideration of whether additional productions would be necessary pending its review of the substantial September 13 and September 26, 2016 productions. The staff counsel for the PSI agreed to consider these requests, and discussions with the PSI are ongoing. See id. 2-3. An agreement has not yet been reached, however. Counsel for Mr. Ferrer and Backpage thus informed the PSI s counsel that Mr. Ferrer would file the instant motion, to ensure the timely filing of Mr. Ferrer s extension request in this Court. See id. 3. The Office of Senate Legal Counsel advised counsel for Mr. Ferrer and Backpage that it would oppose the Motion. Id. 5. CONCLUSION For the foregoing reasons, Respondent Carl Ferrer, CEO of Backpage.com LLP, respectfully requests that the Court grant the instant Motion to extend the time period for him to comply with the Court s Order requiring him to produce documents responsive to the Requests in the PSI s Subpoena through September 26, 2016 for the follow-on production, and through October 28, 2016 for the privilege logs and remaining productions, and that the additional productions beyond the follow-on production be conditioned upon the PSI informing Backpage in writing by October 1, 2016 that it still desires additional productions. Date: September 13, 2016 Respectfully submitted, /s/ Robert D. Luskin Robert D. Luskin, Bar # 293621 Jamie S. Gardner, Bar # 375811 Gerald S. Sachs, Bar # 493507 PAUL HASTINGS LLP 875 15th Street NW Washington, D.C. 20005 Telephone: (202) 551-1700 Steven R. Ross, Bar #244863 Stanley M. Brand, Bar #213082 AKIN GUMP STRAUSS HAUER & FELD LLP 1333 New Hampshire Avenue NW 12
Case 1:16-mc-00621-RMC Document 26 Filed 09/13/16 Page 17 of 18 Washington, D.C. 20036 (202) 887-4343 Robert Corn-Revere, Bar #375415 DAVIS WRIGHT TREMAINE LLP 1919 Pennsylvania Avenue NW, Suite 800 Washington, D.C. 20006 Telephone: (202) 973-4200 Counsel for Respondent Carl Ferrer 13
Case 1:16-mc-00621-RMC Document 26 Filed 09/13/16 Page 18 of 18 CERTIFICATE OF SERVICE I hereby certify that on September 13, 2016, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which will send a notice of electronic filing to counsel of record for Applicant Senate Permanent Subcommittee on Investigations. /s/ Robert D. Luskin Robert D. Luskin Counsel for Respondent Carl Ferrer 14