Private Sector Subpoenas
Backpage.com Case
Major Issue: Whether a Senate subcommittee can obtain court enforcement of a Senate subpoena duces tecum served on the chief executive officer of a private sector company under Senate investigation.
Case Status: Complete; no ongoing proceedings.
Case Description: On March 29, 2016, the Senate Permanent Subcommittee on Investigations (PSI) filed suit in D.C. federal district court to enforce an Oct. 1, 2015 subpoena served on Carl Ferrer, chief executive officer (CEO) of Backpage.com LLC (“Backpage”), an online classified advertising website. PSI had issued the subpoena to advance its investigation into sex trafficking on the Internet. Mr. Ferrer refused to produce most of the requested documents. On March 17, 2016, the Senate voted 96-0 to hold Backpage and its CEO in civil contempt, the first time it had authorized a civil contempt action in more than 20 years.
Procedural Posture: D.C. District Judge Rosemary M. Collyer was assigned to Case No. 16-mc-621. On Aug. 5, 2016, the district court upheld the Senate subpoena over multiple objections, and issued an enforcement order. On Aug. 9, 2016, Mr. Ferrer appealed the district court ruling to the D.C. Circuit Court of Appeals. He also requested a stay on document production in filings with the district court, appeals court, and Supreme Court, all of which, after briefing, declined to impose an extended stay.
Mr. Ferrer then produced 110,000 pages of documents in response to the district court’s order, but requested additional time to produce certain other documents. The district court granted him more time, but also held that he had waived all privileges by failing to file a required privilege log. The district court also denied a request for a second stay. On May 16, 2017, the D.C. Circuit Court of Appeals held that because some documents had been produced, PSI had completed its investigation, and PSI was no longer seeking any documents, the case was moot. The appeals court dismissed the case. It also granted Mr. Ferrer’s request to vacate the district court’s rulings. There are no ongoing proceedings in this matter.
In separate cases in several states, Mr. Ferrer and other Backpage executives were criminally indicted for conduct described in the PSI investigation. Mr. Ferrer eventually pleaded guilty.
District Court Proceedings
On March 29, 2016, PSI filed suit to enforce its subpoena to obtain documents from Carl Ferrer, CEO of Backpage.com. On Aug. 5, 2016, D.C. District Judge Collyer upheld the Senate subpoena and ordered compliance by Backpage’s CEO. Senate Permanent Subcomm. v. Ferrer, 199 F. Supp. 3d 125 (D.D.C. 2016). Mr. Ferrer requested that the district court stay document production pending appeal. On Aug. 12, 2019, the district court denied the stay. After the appeals court and Supreme Court issued and then vacated temporary stay orders within a few days, Mr. Ferrer produced 110,000 pages of documents. He requested an extension of time from the district court to produce certain other documents. On Sept. 16, 2016, the district court granted him an additional two weeks to produce them, but also ruled that the plaintiff had waived certain privileges by failing to provide a privilege log. On Sept. 30, 2016, the district court denied a request by Mr. Ferrer for a second stay.
- 2016 Senate Application and memo to enforce PSI subpoena (3-29-2016) (166 pages)
- 2016 Ferrer-Backpage Memo opposing PSI subpoena (4-26-2016) (55 pages)
- 2016 District Court Opinion upholding subpoena (8-5-2016) (26 pages)
- Key Excerpts from 2016 District Court Opinion upholding subpoena (5 pages)
- 2016 District Court Opinion denying stay (8-12-2016)(7 pages)
- 2016 District Court Opinion granting time extension but finding waiver of privilege due to failure to file privilege log (9-16-2016)(8 pages)
- 2016 District Court Opinion denying second stay (9-30-2016)(11 pages)
- Key Excerpts from 2016 District Court Opinions on requests to delay document production (4 pages)
Mr. Ferrer appealed the district court’s rulings to the D.C. Circuit Court of Appeals.
Appeals Court Proceedings
On Aug. 9, 2016, Mr. Ferrer appealed the district court’s rulings. A D.C. Circuit 3-judge panel, with Judges Srinivasan, Tatel and Wilkins, was assigned to Case No. 16-5232. On Aug. 12, 2016, the appeals court issued a temporary stay on document production pending appeal, but vacated it after briefing. On May 16, 2017, the appeals panel unanimously ruled that, because Mr. Ferrer had turned over some of the documents, PSI had completed its investigation, and PSI was no longer seeking any materials, the case was moot. Senate Permanent Subcomm. on Investigations v. Ferrer, 856 F.3d 1080 (D.C. Cir. 2017). At Mr. Ferrer’s request and without objection from the Senate, the appeals court also vacated the district court’s rulings.
- 2016 Ferrer brief supporting appeal (11-16-2016) (78 pages)
- 2017 Appeals Court Opinion (5-16-2017)(14 pages)
- Key Excerpts from 2017 Appeals Court Opinion (2 pages)
Supreme Court Proceedings
On Sept. 6, 2016, in response to a motion from Mr. Ferrer for an emergency stay of document production pending appeal, the Supreme Court ordered a temporary stay pending briefing on the issues. On Sept. 13, 2016, the Supreme Court vacated the stay.
There are no ongoing proceedings in this matter.
