Lewis Roca

ROTHGERBER CHRISTIE
Jon Weiss
Lewis Roca Rothgerber Christie LLP Admitted in Arizona
201 East Washington Street 602 262 5311 main 602 .262.5382 direct
Suite 1200 602 262 5747 fax 602.734.3860 fax
Phoenix, AZ 85004 lrrc.com jweiss@lrrc.com

Our File Number: 302826-00003

January 14, 2019

VIA HAND DELIVERY

State Bar of Arizona

Attn : Kelly J. Flood , Esq.
4201 N. 24th Street, Suite 100
Phoenix, AZ 85016-6266

RE: File No. 18-3046

Complainant: Tom Retzlaff

Dear Ms. Flood:

I represent Marc J. Randazza and write in response to your letter of December 6, 2018. Thank
you again for agreeing to extend Mr. Randazza's response deadline to January 14, 2019.

Mr. Randazza recognizes his obligation to fully and honestly respond to and cooperate with the
State Bar's investigation. As set forth herein, the allegations against Mr. Randazza have
already been investigated by the State Bar of Nevada and adjudicated by the Nevada Supreme
Court, are currently the subject of reciprocal disciplinary proceedings in Arizona In re Randazza,
no. PDF-2018-9110, should not be re-investigated by the State Bar of Arizona as a separate
matter outside of the reciprocal disciplinary proceedings , and, in any event, do not give rise to
violations of any ethical rules beyond the violations found by the Nevada Supreme Court. No
further action should be taken by the State Bar of Arizona.

I. The Complainant

Before addressing the specific allegations, I believe it would be helpful to provide some
background information regarding Mr. Retzlaff so you can consider his complaint in context.

Mr. Retzlaff is a convicted felon who was previously incarcerated in Texas. His criminal history
includes convictions or deferred adjudications for a variety of offenses, including tampering with
or fabricating evidence, tampering with a government record, violating a protective order, theft,
and exposing minors to harmful materials. See Ex. 1, appellate brief filed by Texas Dept. pf
1
Protective and Regulatory Services, at 37-38. His troubling and unstable behavior led to his
loss of parental rights over his two children in a proceeding before the Texas Department of
r:-C/) Protective and Regulatory Services. See Ex. 2, Retzlaff v. Texas Dep't of Protective and
~i; c__ jJ Regulatory Servs. , 1999 Tex. App. LEXIS 5547 (App. July 29, 1999). The Texas investigation
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Exhibit 1 contains various redactions and highlighting. Those marks were on the text as received by
undersigned counsel.

106923087_3
Albuquerque / Colorado Springs / Denver / Irvine / Las Vegas / Los Angeles / Phoenix / Reno / Silicon Valley / Tucson
 State Bar of Arizona
Lewis Roca January 14, 2019
ROTHGERBER CHRISTIE Page 2

Neither Mr. Randazza nor his firm has ever represented Mr. Retzlaff. Nor did Mr. Retzlaff have
any involvement in the disputes, litigation or other matters described in the attachments to Mr.
Retzlaff's complaint. Instead, Mr. Retzlaff appears to be targeting Mr. Randazza because of
hostility he holds toward two of Mr. Retzlaff's clients, James McGibney and Mr. McGibney's
company ViaView, Inc.

Several years ago Mr. Randazza represented ViaView in litigation against a "revenge-porn"
website. See Ex. 3, ViaView, Inc. v. Chanson, No. 2:12-cv-01657, 2013 U.S. Dist. LEXIS
49586 (D. Nev. Apr. 4, 2013). Mr. Randazza's successful prosecution of that lawsuit led to the
website being shut down.

During the course of the Via View litigation, Mr. Retzlaff began obsessing over Mr. Randazza's
clients and eventually Mr. Randazza . Why? Because Mr. Retzlaff apparently was a consumer
of the kinds of websites that Mr. Randazza's clients were targeting. Mr. Retzlaff's daughter has
reported that Mr. Retzlaff placed a hidden camera in his own shower, used that camera to film
his daughter, and then posted his daughter's nude pictures on the web. That and a variety of
other disturbing conduct by Mr. Retzlaff is detailed in his daughter's three sworn declarations
filed in in federal court, California state court, and a California administrative proceeding. See
Ex. 4(A, B and C).

Mr. Retzlaff expressed his hostility toward Mr. Randazza's clients' efforts to shut down the
revenge porn site through a series of vile and vitriolic internet postings. Those postings were
made on various social media platforms under a variety of internet alias and ultimately led Mr.
Randazza's clients to file a lawsuit against Mr. Retzlaff alleging that Mr. Retzlaff had embarked
on a course designed to "harass, stalk, terrorize and defame" Mr. Randazza's clients and their
business partners. See Ex. 5, McGibney v. Retzlaff, No. 14-cv-01059-BLF, 2015 U.S. Dist.
LEXIS 79434, at *2-3 (N.D. Cal. June 18, 2015).

Mr. Retzlaff's harassment of Mr. Randazza's clients didn't stop with defamatory internet posts.
He filed a phony wage claim against them with the California Department of Industrial Relations
"on behalf of' his daughter; she later testified that the allegations Mr. Retzlaff made on her
behalf were false and the complaint was filed without her consent. See Ex. 4. She also testified
that Mr. Retzlaff had forged her signature on a ginned-up affidavit in support of a falsified
request for a protective order against Mr. Randazza's client. See Ex. 4.

Mr. Retzlaff's targeting of Mr. Randazza's clients (and Mr. Randazza himself) is part of a larger
pattern of Mr. Retzlaff's harassing conduct toward his perceived adversaries. As described by
the Texas Court of Appeals, over a seven-year period he filed at least 26 prose lawsuits against
a variety of different defendants. See Ex. 6, Retzlaff v. GoAmerica Communs. Corp., 356
S.VV.3d 689, 699 (Tex. App. 2011). His lengthy history of abusing the judicial system and filing
frivolous lawsuits ultimately led the Texas courts to deem him a vexatious litigant, a status
reserved for those who initiate at least five cases that were decided adversely within a period of
seven years. Id. at 698.

The materials Mr. Retzlaff submitted with his complaint to the State Bar of Arizona relate to Mr.
Randazza's prior representation of Excelsior Media Corp. and Liberty Media Holdings. Mr.
Retzlaff had nothing to do with either of those entities, nothing to do with Mr. Randazza's prior
representation of those entities, and nothing to do with Mr. Randazza's dispute with those

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 Lewis Roca State Bar of Arizona
January 14, 2019
ROTHGERBER CHRISTIE Page 3

entities. Mr. Retzlaff instead is using this proceeding to pursue his vendetta against Mr.
Randazza for having represented Mr. McGibney and ViaView.

This is not the first time Mr. Retzlaff has filed a bar charge against Mr. Randazza for matters
having nothing to do with Mr. Retzlaff. In 2016, he submitted a charge with the State of
Washington's Practice of Law Board accusing Mr. Randazza of engaging in the unauthorized
practice of law based on newspaper articles he read that quoted Mr. Randazza weighing in on
certain topics. See Ex. 7. Though Mr. Retzlaff had zero involvement in the matter discussed in
the articles, Mr. Randazza was forced to devote time and resources to preparing a response
(see Ex. 8), after which the Washington Practice of Law Board dismissed the complaint with no
further action. See Ex. 9.

Nor is this the first time Mr. Retzlaff has filed a bar complaint against Mr. Randazza arising from
the Excelsior/Liberty matter. In 2016, he filed a complaint with the State Bar of Nevada
regarding the very same matter and he provided the State Bar of Nevada with the very same
arbitration decision that he now attaches to his complaint with the State Bar of Arizona - he told
the State Bar of Nevada that Mr. Randazza "is clearly a criminal and he needs to be disbarred."
See Ex. 10. By that time, the State Bar of Nevada was already investigating the matter
because, as discussed below, Mr. Randazza had self-reported the arbitrator's (now vacated)
decision to the Nevada Bar when it was issued in 2015.

The State Bar of Arizona should not allow itself to be used as a pawn in Mr. Retzlaff's ongoing
harassment of Mr. Randazza. The courts have told Mr. Retzlaff that they will not tolerate his
serial abuses of the judicial system. The State Bar of Arizona should send him the same
message. This is not a legitimate bar complaint and it should be summarily dismissed.

II. Retzlaff's Allegations Have Already Been Investigated and Resolved

On April 4, 2013, Jason Gibson , CEO of Excelsior Media Corp. and managing member of
Liberty Media Holdings (which are affiliated companies), filed a complaint against Mr. Randazza
with the State Bar of Arizona. See State Bar File No. 13-0717. Excelsior and Liberty were
Nevada-based companies; Mr. Randazza had represented both and served as Excelsior's
general counsel in Nevada, where he resided.

Given the lack of any Arizona connection, the State Bar of Arizona recognized that Mr. Gibson's
complaint should be handled in Nevada, not Arizona. On April 11, 2013, Staff Bar Counsel
Stephen P. Little advised Mr. Randazza that "[a]fter reviewing the charge, we have determined
that this matter is more appropriately addressed to the State Bar of Nevada and have instructed
Mr. Gibson to forward the charge to them." See Ex. 11.

Mr. Gibson had, in fact, also filed a complaint with the State Bar of Nevada on April 3, 2013.
See Ex. 12 (without attached exhibits). Mr. Randazza, through counsel, filed a response. See
Ex. 13. At that time, Excelsior, Liberty, Mr. Gibson and Mr. Randazza were involved in litigation
against each other. As is typical with most state bar organization, the State Bar of Nevada
decided not to launch its own investigation during the pendency of the litigation between the
parties. See Ex. 14.

In June 2015, an arbitrator overseeing issued an Interim Arbitration Award ("IAA") in favor of
Excelsior, Liberty and Mr. Gibson and adverse to Mr. Randazza. Mr. Randazza immediately

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ROTHGERBER CHRISTIE
State Bar of Arizona
January 14, 2019
Page 4

self-reported the IAA to the State Bar of Nevada and all other jurisdictions in which he was
admitted. 2 Mr. Gibson also filed a renewed bar complaint in Nevada and attached a copy of the
IAA along with multiple additional exhibits. See Ex. 15 (without exhibits). As noted, Mr.
Retzlaff also filed a complaint with the State Bar of Nevada based on the IAA. See Ex. 10.

The State Bar of Nevada launched an investigation. It collected and reviewed thousands of
pages of documents from the arbitration proceedings and from Mr. Randazza's subsequent
bankruptcy proceedings. Based on its investigation, it filed a complaint against Mr. Randazza in
July 2016 (see Ex. 16) and then an amended complaint in December 2016. See Ex. 17.

The Nevada Bar proceedings lasted more than two years. They were thorough, they were
comprehensive, and they were extremely expensive. The Southern Nevada Disciplinary Board
dismissed one count based on Mr. Randazza's motion to dismiss. See Ex. 18. The State Bar
of Nevada agreed to dismiss other charges based on its investigation and analyses. Ultimately,
the parties agreed to a negotiated resolution that was accepted by the Nevada Supreme Court.
See Ex. 19.

Mr. Randazza immediately self-reported the Nevada discipline to the State Bar of Arizona. See
Ex. 20. The matter is currently the subject of a reciprocal disciplinary proceeding in Arizona in
In re Randazza, no. PDF-2018-9110.

The State Bar of Arizona should not open a new investigation into a Nevada-based matter that
has already been thoroughly investigated and adjudicated in Nevada. The information that Mr.
Retzlaff provided to the State Bar of Arizona is the exact same information that was already
reviewed and vetted by the State Bar of Arizona years ago with a decision to defer to Nevada.
The matter was comprehensively investigated by the State Bar of Nevada, which led to
imposition of discipline in Nevada and reciprocal proceedings in Arizona in which the State Bar
of Arizona informed the Presiding Disciplinary Judge that "it could find no basis to conclude" that
Mr. Randazza should not receive substantially similar discipline as that imposed in Nevada.
See Ex. 21. The State Bar of Arizona had the ability to review the State Bar of Nevada's entire
file before making that representation . It cannot now fairly initiate a new investigation after
representing to the Presiding Disciplinary Judge that Nevada's discipline was sufficient.

The reciprocal disciplinary process is designed to avoid serial investigations by multiple state
bars into the same conduct. A decision by the State Bar of Arizona to move forward with Mr.
Retzlaff's complaint would establish a horrible precedent and completely undermine the system
of reciprocal discipline. Lawyers admitted in multiple jurisdictions should not be subjected to a
never-ending spiral of investigation after investigation into the same conduct. It would be wholly
inappropriate for the State Bar of Arizona to revisit Nevada's determination regarding Mr.
Randazza's conduct, particularly after it has already informed the Presiding Disciplinary Judge
of its position that Mr. Randazza should receive a substantially similar discipline.

"The purpose of attorney discipline is to protect the public and not to punish the lawyer." In re
Douglas, 158 Ariz. 516,523 (1988). Subjecting Mr. Randazza to another protracted and
expensive investigation, with potential additional discipline, for matters that have already been
the subject of a multi-year investigatory process and decision, would certainly amount to

2
Mr. Randazza attempted to self-report the decision to the State Bar of Arizona. He was telephonically
advised that he was not permitted to self-report.

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Lewis Roca State Bar of Arizona
January 14, 2019
ROTHGERBER CHRISTIE Page 5

punishment. The State Bar of Arizona properly deferred to the State Bar of Nevada when first
presented with information about this matter three and a half years ago. It would be
fundamentally unfair for the Bar to take action now just because a complainant with an ax to
grind decided to file a "new" charge relating to an already adjudicated matter.

m. The Facts Are Complex and Convoluted

Based on the discussion in Sections 1 and 2 above, the State Bar need not review this matter
any further or dig into the facts. The matter should be dismissed with no further investigation or
review.

Nevertheless, Mr. Randazza is providing a substantive response as requested. During a phone

conversation, you informed me that, given the unique circumstances, Mr. Randazza could
provide you with documents he previously submitted in other proceedings addressing the
factual issues raised in Mr. Retzlaff's complaint instead of restating everything in this response.
Thank you for allowing Mr. Randazza to proceed in that manner.

The following documents, both of which are attached, together describe the facts relating to Mr.
Randazza's disputes with Excelsior and Liberty:

Ex. 13: letter from Brian Tannebaum (counsel for Randazza) to Phillip Pattee
(Assistant Bar Counsel, State Bar of Nevada), dated June 13, 2013.

Ex. 22: Opposition to Motion For Order Confirming Interim Arbitration Award
Confirmation, filed in the United States Bankruptcy Court for the District of
Nevada, Adv. Proc. No. 15-01193, dated February 24, 2017.

The factual summaries in exhibits 13 and 22 just scratch the surface - a full scale
understanding of the facts would require review of thousands of pages of documents, hundreds
of court filings, and mountains of transcribed testimony and court hearings. Mr. Randazza
understands that the State Bar of Nevada's record includes all substantive documents from the
underlying arbitration and bankruptcy proceedings. Those records are massive. The
bankruptcy docket alone runs 39 pages and contains 235 entries.

Mr. Retzlaff's complaint relies on two documents: (1) the June 3, 2015 IAA referenced above,
which has been vacated; and (2) the Second Amended Complaint ("SAC") by Creditors
Excelsior Media Corp., and Liberty Media Holdings, LLC to Determine the Non-Dischargeability
of Debts, dated July 7, 2016, filed in the U.S. Bankruptcy Court for the District of Nevada, Adv.
Proc. No. 15-01193. Those documents are a tiny part of a much larger picture involving multiple
years of litigation and proceedings. The protracted length of the proceedings involving the
Nevada State Bar was no accident. The facts and issues are extremely complex and
convoluted

As you review the materials attached to Mr. Retzlaff's complaints, two salient facts are important
to bear in mind. First, the United States Bankruptcy Court for the District of Nevada refused to
confirm the IAA (see Ex. 23) and ultimately vacated and dismissed it. See Ex. 24. The IAA's
findings thus have no evidentiary value.

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ROTHGERBER CHRISTIE
State Bar of Arizona
January 14, 2019
Page 6

Second, the SAC consists of unproven allegations that were never tested or determined to be
true. Mr. Randazza denies most of the material allegations of wrongdoing , the Bankruptcy
Court dismissed portions of the SAC based on Mr. Randazza's motion to dismiss and
subsequent motion for summary judgment, and the parties settled their dispute for less than the
cost of continued litigation before the Bankruptcy Court could adjudicate the remaining
allegations.

IV. General Background

While Mr. Randazza's summary of the primary facts is set forth in Exhibits 13 and 22, we
provide this brief overview of the underlying dispute and procedural history.

In June 2009, Excelsior hired Mr. Randazza as its General Counsel pursuant to an Employment
Agreement, the key terms of which included:

• In addition to his salary, Mr. Randazza was to receive a nondiscretionary bonus of 25%
of any settlement funds paid to Excelsior in connection with legal matters. The bonus
vested at the time of settlement, not collection, and Mr. Randazza was entitled to any
vested funds even if his employment ended before Excelsior collected the funds .

• Mr. Randazza was contractually entitled to severance payment in the event Excelsior
unilaterally term inated his employment. Unilateral termination under the agreement
meant termination for any cause or a change in circumstances of employment
constituting constructive discharge.

• Mr. Randazza, while serving as general counsel to Excelsior, could also practice law on
behalf of other clients through an outside law firm. For the operative period, that law firm
was primarily Marc J. Randazza P.A. ("MJRPA").

• Claims relating to the Employment Agreement or Mr. Randazza's employment were to

be resolved through arbitration.

At the direction of Excelsior, Mr. Randazza, through his separate law firm MJRPA, also
represented Liberty and pursued violations of Liberty's intellectual property rights . Liberty was
Excelsior's sister-entity; together, they operated a joint venture known as "Corbin Fisher".

In 2012, Mr. Randazza's relationship with Excelsior and Liberty - and particular with Mr. Gibson,
who controlled both entities - began to sour. Mr. Gibson, without informing Mr. Randazza or
seeking his consent, filmed a pornographic video and took pornographic photographs in Mr.
Randazza's office. Mr. Gibson also subjected Mr. Randazza to other harassing behavior, as
described in Ex. 22 at 8. Disagreements also arose relating to Mr. Randazza's entitlement to
payments for work he and his firm did on behalf of Liberty.

In light of the payment dispute with Liberty, Mr. Randazza sent an email to Mr. Gibson stating
that "it seems appropriate that I withdraw from representing Liberty in any future matters." Mr.
Gibson responded that he chose to construe Mr. Randazza's email as his resignation from
Excelsior. Mr. Randazza disputed then, and continues to dispute, that he resigned from
Excelsior.

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Lewis Roca
ROTHGERBER CHRISTIE
State Bar of Arizona
January 14, 2019
Page 7

The term ination of Mr. Randazza's employment ultimately led to 1) Mr. Randazza initiating
arbitration against Excelsior for amounts owed under the Employment Agreement and wrongful
termination, 2) MJRPA suing Liberty in Nevada District Court for monies owed for its
representation of Liberty in a case referred to as the "Oron Litigation /' 3) both Excelsior and
Liberty filing malpractice and similar counterclaims, and 4) Liberty and Mr. Gibson voluntarily
joining in the arbitration.

The arbitration proceedings lasted for more than two years and culminated with a 5-day
evidentiary hearing. On June 3, 2015, the arbitrator issued the IAA, which was largely in favor
of Excelsior and Liberty and which awarded monetary damages against Mr. Randazza. From
Mr. Randazza's perspective, the IAA is rife with errors, misstatements of the evidence, and
factual findings that are not supported by the evidence. See Ex. 22. He is prepared to prove, if
necessary, that the IAA presents a patently false picture of his and his former clients' conduct.

Excelsior and Liberty filed a motion to confirm the arbitration award in Nevada state court. Mr.
Randazza opposed the motion to confirm and sought to have the IAA vacated or modified.
Before the court addressed the parties' competing motions, Mr. Randazza filed a bankruptcy
petition in the United States Bankruptcy Court for the District of Nevada. The bankruptcy filing
stayed any action on the state court confirmation proceedings.

The parties thereafter engaged in extensive litigation in Bankruptcy Court, which included
Excelsior and Liberty's filing of the SAC. During the course of the litigation, the Bankruptcy
Court dismissed portions of the SAC based on Mr. Randazza's motions to dismiss (see Ex. 25)
and for summary judgment (see Ex. 26), denied Excelsior's and Liberty's motion asking the
Bankruptcy Court to confirm the IAA (see Ex. 23), and ultimately entered an order vacating and
dismissing the IAA following the parties' settlement. See Ex. 24. The IAA thus became a legal
nullity.

In the meantime, the Nevada State Bar's investigation plowed forward . As noted, the Nevada
State Bar monitored and received documents from the arbitration and bankruptcy proceedings,
pursued charged against Mr. Randazza, and ultimately agreed to dismiss most of those charges
as part of a settlement in which Mr. Randazza agreed to a stipulated set of facts and agreed-
upon discipline.

V. No Further Disciplinary Action Is Warranted

You asked Mr. Randazza to address the allegations of the SAC and IAA with respect to Ethics
Rules 1.2, 1.5, 1.7, 1.9, 1.15, 1.16, 3.1, 4.1, 8.4(c), and 8.4(d), except regarding ERs 1.8 and
5.6 with respect to the matters described in Mr. Randazza's Conditional Guilty Plea in Exchange
for a Stated Form of Discipline filed with the State Bar of Nevada. The State Bar of Nevada
already considered and investigated all of the allegations in the SAC and IAA in connection with
all of the ethics rules prior to agreeing to the Conditional Guilty Plea. Mr. Randazza again
restates his objection to the State Bar of Arizona subjecting Mr. Randazza to another
investigation of the same matters. That said, Mr. Randazza's conduct did not violate any of the
rules other than as previously found by the Nevada Supreme Court.

The scatters hot approach of the SAC and IAA make it difficult for Mr. Randazza to determine
which allegations you want him to address in connection with which ethical rules. We are

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 Lewis Roca
ROTHGERBER CHRISTIE
State Bar of Arizona
January 14, 2019
Page 8

making a good faith effort to address what we think are the pertinent allegations in those
documents. But please advise us if there are specific matters that we did not address for which
the Bar would like additional explanation.

A. Mr. Randazza Did Not Violate ER 1.2

The only allegations that Mr. Randazza is aware of that arguably implicate ER 1.2 are those
relating to the settlement of the Oran litigation, which allegations were the subject of the
Conditional Guilty Plea in Exchange fo r a Stated Form of Discipline in Nevada. Mr. Randazza's
negotiations with Oron were undertaken in furtherance of Liberty's stated objectives regarding
the representation in that case and with Mr. Gibson's full knowledge. More details regarding the
settlement can be found in Exhibits 13 and 22. The bottom line, though, is Mr. Randazza
properly consulted with and abided his clients' decisions regarding settlement.

Mr. Randazza did not participate in the offering or making of an agreement that was contrary to
his client's objectives. He abided by Liberty's settlement decisions and negotiated a resolution
consisted with Liberty's objectives . He agreed to future representation of Oron, but such
representation would commence only after all disputes between Liberty and Oron were
resolved. The fact that Mr. Randazza's future representation of Oron might subsequently
preclude him from representing future potential clients who were adverse to Oron was no
different from the representation of any client. Regardless, though, his agreement to represent
Oron in the future did not affect his representation of Liberty and did not violate ER 1.2.

B. Mr. Randazza Did Not Violate ER 1.5

Mr. Randazza was a salaried employee of Excelsior who received, essentially, a 25%
contingency fee bonus for successful resolution of claims of Excelsior's affiliated entity, Liberty.
This arrangement was set forth in a writing, the Employment Agreement, which described the
fee terms. Those terms were reasonable.

The U.S. District Court for the District of Nevada reviewed Mr. Randazza 's fees in the Oran
litigation and found them to be reasonable. See Ex. 27.

C. Mr. Randazza Did Not Violate ER 1.7

The Arbitrator's suggestion that there were conflicts of interest based on Mr. Randazza's
representation of outside clients was wrong. He notably never explained how any of the
representations constituted taking an adverse position against Excelsior or Liberty. They didn't.

The State Bar of Nevada devoted a significant amount of time investigating the alleged conflicts,
which were the focus of Counts 2-4 of its Amended Complaint against Mr. Randazza . See Ex.
17. It ultimately, and correctly, agreed to drop all of the conflict-related allegations and dismiss
the conflict of interest charges.

As noted, Mr. Randazza 's Employment Agreement with Excelsior expressly allowed him ,
through MJRPA, to represent other clients. He did so, but only when those representations did
not pose a conflict of interest. The outside representations identified in the IAA and SAC (which
were investigated by the State Bar of Nevada) are discussed below.

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January 14, 2019
ROTHGERBER CHRISTIE Page 9

1. XVideos

During the course of his Excelsior employment, Mr. Randazza provided some counsel to
XVideos, a pornographic "tube site" . A "tube site," like YouTube, does not directly infringe or
even create content. Rather, third parties upload videos to share with others. They are not
liable to copyright holders unless and until they fail to abide a properly issued takedown notice
under the Digital Millennium Copyright Act, 17 U.S.C. § 512.

Excelsior and Liberty knew Mr. Randazza represented XVideos. He told them. On January 17,
2011, an Excelsior and Liberty employee suggested pursuing XVideos itself for infringement. In
response, Mr. Randazza reminded Excelsior and Liberty (in writing) that he and his law partner
provided advice and counsel to XVideos in avoiding such infringement claims. He said he could
not represent Excelsior and Liberty against XVideos, thus avoiding any conflict.

Eight months later, on September 6, 2011, Mr. Randazza was training Excelsior and Liberty
employees on the issuance of demands to remove material from various Tube Sites. This
advice came in the wake of Lenz v. Universal and its progeny. See 572 F. Supp. 2d 1150 (N.D.
Cal. 2008). In that case, Universal demanded removal of a video from YouTube. However, it
did so without properly considering whether the video was a "fair use." Mr. Randazza is a
published expert on this case and this sub-area of law. See Randazza, Marc J., "Lenz v.
Universal: A Call to Reform Section 512(f) of the DMCA and to Strengthen Fair Use," 18 VAND.
J. ENT. and TECH. L., No. 3, (May 1, 2016), available at SSRN:
https://ssrn. com/abstract=2773137.

Notably, in the Lenz case, there was never a claim alleged against YouTube - the "tube site" in
question. In order to help Excelsior and Liberty avoid being sued for an improper takedown
demand, Randazza sought out a video that he believed was clearly "fair use." He found one on
XVideos. However, this was not uploaded by XVideos - it was uploaded by a third party - just
like the facts in Lenz v. Universal.

Mr. Randazza used this video as a teaching aid - showing the Excelsior and Liberty staff that it
was an example of fair use, and thus immune from liability under the Copyright Act. As set forth
therein, although XVideos was hosting the video, the opposing party would not have been
XVideos, but rather the individual who uploaded the compilation to XVideos.

There was never a valid claim against XVideos in this circumstance. It was no more liable than
Facebook wo.uld be if someone shares a copyrighted photo or video on the platform. There was
not a valid claim against the user who uploaded the video either, but that person was unknown
- thus there was not even a potential conflict there.

No concurrent conflict of interest existed. ER 1. 7(a) prohibits representation involving a

concurrent conflict of interest, i.e. where the representation of one client is either directly
adverse to another or materially limits responsibilities to another client. Mr. Randazza's
representation of XVideos was never directly adverse to his representation of Excelsior and
Liberty. In January 2011, Mr. Randazza expressly stated he would not represent Excelsior and
Liberty against XVideos, avoiding a concurrent conflict and extricating himself and his firm from
any divided loyalties. Thus, ER 1.7(a), which requires concurrency, has no applicability.

106923087_3
 Lewis Roca
ROTHGERBER CHRISTIE
State Bar of Arizona
January 14, 2019
Page 10

In September 2011 , it was the non-client uploader, not XVideos, that was theoretically adverse
to Excelsior and Liberty. As Mr. Randazza did not represent that party, ER 1.7(a) has no direct
applicability. Neither were his responsibilities to XVideos materially limiting of his
responsibilities to Excelsior and Liberty. To the contrary, they were mutually beneficial. When
Excelsior and Liberty's content was found on XVideos, removal requests by Mr. Randazza were
given priority and the content was removed immediately. Mr. Randazza regularly boasted of
this relationship and the resulting benefits conferred to Liberty. Mr. Randazza's representation
of XVideos was disclosed by e-mail and was not otherwise prohibited under ER 1.7(b). Such
matters never reached the stage where a written consent was required. No violation of ER 1.7
occurred on account of such representation.

2. Bang Bros

Mr. Randazza frequently discussed his representation of Bang Bros. to Excelsior and Liberty,
though he did not memorialize this in writing as there was no reason to do so.

At one point Excelsior/Liberty were considering the purchase of a competitor, Cody Media .
They allege in the SAC that Mr. Randazza made a one time suggestion that they consider
borrowing funds from Bang Bros. to finance the purchase. That discussion did not amount to a
conflict.

The financing issue was raised in a single meeting. The financing was going to be provided at
an interest rate of 37.5% APR. Mr. Randazza, concerned for the financial well-being of
Excelsior and Liberty, suggested that better rates could likely be obtained. Excelsior and
Liberty's in-house accountant was angered by this suggestion, since the financing was going to
be arranged by him (with a commission paid to him), and there was a debate as to whether
there could be cheaper financing available.

Mr. Randazza suggested that alternate funding sources, including Bang Bros., be considered.
Mr. Randazza did not represent Bang Bros. in relation to financing the purchase, and Excelsior
and Liberty did not choose to use Bang Bros. as a lender. Randazza merely suggested that
Excelsior and Liberty consider borrowing from Bang Bros., as Bang Bros, at the time , had an
excess amount of cash, and was looking for places to invest it.

The discussion went no further than this one suggestion. There were no negotiations. There
were no term sheets. Excelsior and Liberty never moved beyond hearing this suggestion that
perhaps it could do better than 37.5% APR.

No concurrent conflict of interest occurred. Mr. Randazza's representation of Bang Bros. was
not directly adverse to his representation of Excelsior and Liberty. He did not act as lender's
counsel in the potential transaction, which was never consummated, and there is no evidence
he ever provided any legal assistance to Bang Bros. regarding the matter.

Neither were his responsibilities to Bang Bros. materially limiting of his responsibilities to
Excelsior and Liberty. To the contrary, they were potentially mutually beneficial. As noted, Mr.
Randazza used his connection to Bang Bros. fo r the benefit of Excelsior and Liberty when he
thought the original proposed lender was not making the best offer possible. And, given the
usurious amount of interest that would have been charged , Mr. Randazza would have been
remiss in his duties had he failed to at least propose that Excelsior and Liberty look for financing

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ROTHGERBER CHRISTIE Page 11

at a more commercially reasonable rate. Mr. Randazza's representation of Bang Bros. was
disclosed and was not otherwise prohibited under ER 1.7(b). Such matters never reached the
stage where a written consent was required. No violation of ER 1. 7 occurred on account of
such representation .

3. PomGuardian

Mr. Randazza did not violate ER 1. 7 based on his law firm's contemporaneous representation of
Privacy Stops Here, LLC , a/k/a PornGuardian.

Mr. Randazza represented PornGuardian in its own claims against Oron while brokering a
similar settlement for Liberty. Mr. Randazza informed Excelsior and Liberty that he represented
PornGuardian and told them he believed they would benefit from his work with PornGuardian,
including towards the settlement with Oron. On June 29, 2012, specific written disclosure that
PornGuardian was to be a co-plaintiff in the event of litigation was made. Although Excelsior
and Liberty expressed displeasure, they did not object to the joint representation in their July 1,
2012 response.

However, respecting Excelsior and Liberty's desire to potentially extricate their involvement with
PornGuardian, Mr. Randazza ensured that very day that the settlement agreements for each
client would be separate. Furthermore, when PornGuardian insisted upon terms that could
have upset the Excelsior and Liberty settlement, Mr. Randazza withdrew from representing
PornGuardian, and PornGuardian retained separate counsel.

No concurrent conflict of interest occurred . Mr. Randazza's representation of PornGuardian

was not directly adverse to his representation of Excelsior and Liberty. The rules permit joint
representation when no actual conflict is present. Thus, ER 1.7(a), which requ ires direct
adversity, has no applicability - the moment there was the appearance of adversity, Mr.
Randazza withdrew and the concurrent representation ended.

Neither were his responsibilities to PornGuardian materially limiting of his responsibilities to

Excelsior and Liberty. To the contrary, they were mutually beneficial. Each helped contribute to
the joint legal costs and helped bring pressure to
bear, resulting in settlement.

Mr. Randazza's representation of PornGuardian was disclosed and was not otherwise
prohibited under ER 1.7(b). No violation of ER 1.7 occurred on account of such representation.

4. Titan Media

10 Group d/b/a Titan Media is a pornography company. During his employment with Excelsior,
in or about August 2012 , Mr. Randazza wrote a producer agreement, to be posted online, which
Titan took an interest in - but Titan asked for custom terms, not the "take it or leave it" terms
that Mr. Randazza drafted.

Mr. Randazza's/MJRPA's work with Titan during his employment with Excelsior was minimal. 3
From June 2011 until his termination, Mr. Randazza personally only spent one .2 entry on work

3
Whether Titan was a competitor is irrelevant. Merely representing competitors does not pose a conflict
of interest unless the representation is on a matter where the competitors are actually adverse..

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ROTHGERBER CHRISTIE
State Bar of Arizona
January 14, 2019
Page 12

for Titan. Neither Mr. Randazza nor MJRPA represented Titan in any significant capacity during
this time period . Nor did they represent Titan in any capacity related to the producer agreement
negotiations in August 2012. Titan's general counsel represented Titan in those negotiations.
Mr. Randazza did not represent Titan at all by August 2012, when the producer agreement
negotiations took place, meaning that there was no concurrent conflict of interest.

Mr. Randazza's prior representation of Titan was only in the context of providing assistance as
local counsel in litigation, and there is no allegation or evidence that this representation was in
any way related to the August 2012 contractual negotiations. There is thus nothing to indicate
that Mr. Randazza's representation of Excelsior and Liberty during these negotiations was in
any way limited , or that Mr. Randazza's loyalties were divided. There was no conflict and no
negative effect on Excelsior and Liberty resulting from Mr. Randazza's Titan representation.

D. Mr. Randazza Did Not Violate ER 1.9

Mr. Randazza cannot recall any occasions where he (or his firm) represented one client and
subsequently represented another client in the same or substantially related matter where there
was material adversity. Only in the Oran litigation was there ongoing representation of Liberty
after PornGuardian's claim had resolved, but there was no material adversity between them at
that point. There are no allegations that Mr. Randazza ever used the information of a former
client to its disadvantage. There were no violations of ER 1.9.

E. Mr. Randazza Did Not Violate ER 1.15

The only ER 1. 15 issue Mr. Randazza is aware of relates to Oren's deposit of $550,000 into
MJRPA's trust account, located in Massachusetts, as part of the settlement of the Oran
litigation. Count 5 of the State Bar of Nevada's Amended Complaint against Mr. Randazza
alleged a violation of Nevada's version of ER 1.15 relating to Mr. Randazza's safekeeping of
those proceeds. The only "violation" alleged was that Mr. Randazza placed $550,000 into a
Massachusetts trust account, when his client was a California-organized company, and the
State Bar of Nevada temporarily took the position that this was a violation. See Ex. 17, Count 5.
Mr. Randazza filed a motion to dismiss that Count. In response, the State Bar of Nevada
conceded that it could not prove a violation of ER 1.15. See Ex. 28. The Count was thus
dismissed. See Ex. 18.

There was no ER 1.15 violation. Excelsior and Liberty knew where the funds were kept and had
no objection. All funds were accounted for and Liberty was promptly notified of the receipt of
the settlement proceeds. Disbursement occurred once they vested in Liberty. Funds were not
commingled and there is no allegation of such.

F. Mr. Randazza Did Not Violate ER 1.16

Mr. Randazza's employment agreement explicitly allowed him to engage in outside legal
representation of clients other than Excelsior or related entities, so long as such representation
occurred through a separate law firm. This provision of the Employment Agreement specified

Otherwise, for example, insurance defense counsel could never act for more than one carrier or a
medical malpractice attorney could never represent two obstetricians. Regardless, Excelsior and Liberty
never identified Titan as a competitor.

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ROTHGERBER CHRISTIE
State Bar of Arizona
January 14, 2019
Page 13

that there would be a "wall of separation" between Mr. Randazza's work with Excelsior and his
outside work, though it allowed for incidental or de minimis use of his Excelsior laptop on
outside projects.

Pursuant to company policy, Mr. Randazza did not store Excelsior/Liberty files on any devices.
This policy was in place to ensure that if a phone or a laptop were lost or stolen, no data would
go missing. To ensure that such files would always be available, but not stored on any devices,
Mr. Randazza used "cloud storage" solutions. Initially, he stored them on iCloud servers. Later,
when iCloud stopped being reliable, he switched to "jungle disk." This placed a hard drive icon
on the computer's desktop, but the hard drive was stored remotely - and at any given moment,
if the laptop were stolen or lost, the access would be terminated.

Given that his contract allowed some use of the laptop for outside clients, Mr. Randazza had a
separate Jungle Disk for MJRPA client matters. Whenever Mr. Randazza did any work on this
laptop, he would regularly upload documents to a cloud server using Jungle Disk and delete
.local copies from the laptop's hard drive. The Excelsior and Liberty work product had been
uploaded to Jungle Disk prior to Mr. Randazza returning his laptop at the conclusion of his
employment.

In anticipation of termination, Mr. Randazza had the hard drive of the laptop erased. Mr.
Randazza kept some personal files on this laptop, including files containing tax information. His
paralegal, Erika Dillon, also had some personal documents on the Excelsior laptop she used. It
was a common practice for Excelsior employees to wipe their devices when they were
terminated. Further, Mr. Randazza was aware that Jason Gibson would sometimes keep the
iPhones of ex-employees to monitor communications on them.

Following his termination, Mr. Randazza returned the company laptop and iPhone. 4 Although
the forensic examiner Excelsior hired to examine the laptop did not recover any files from the
laptop's hard drive, they were all preserved on the Cloud Servers instead of the local hard drive.
No known data was lost.

Approximately 19,000 documents were preserved because Mr. Randazza uploaded these files
to Jungle Disk, where Excelsior files were routinely stored. Mr. Randazza did not delete any
work product belonging to Excelsior that could not be retrieved from the Jungle Disk cloud
server. And Excelsior was given copies of all of its files.

As noted, at the time of Mr. Randazza's termination, there was a dispute over the Oran
settlement proceeds. In August 2012, as part of the settlement in the Oron case, Oran's
counsel placed $550,000 in MJRPA's trust account. Under the terms of the Employment
Agreement with Excelsior, Mr. Randazza was entitled to 25% of these funds. Paragraph 3(C) of
the Agreement provides that Mr. Randazza "will receive, as a nondiscretionary bonus, ... 25
percent of any settlement funds paid to Excelsior in connection with legal matters." Even
following termination, he was "entitled to all vested settlement bonus amounts, regardless of
when the settlement funds are collected." On August 29, 2012, when Mr. Randazza was
terminated, there was a real dispute as to Mr. Randazza's entitlement to his share of these

4
The IAA ordered Mr. Randazza to turn over some other laptop computer, which simply does not exist.
Excelsior has never identified that computer or shown Mr. Randazza had not returned it. That portion of
the IAA appears to be based on nothing more than yet another error by the arbitrator.

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January 14, 2019
Page 14
ROTHGERBER CHRISTIE

funds. Moreover, Liberty's interest in those funds had not yet vested, as it had not complied
with the terms of its settlement agreement with Oron, so no disbursement was permitted.

ER 1.16(d) provides, in relevant part, that "[u]pon termination of representation, a lawyer shall
take steps to the extent reasonably practicable to protect a client's interests, such as ...
surrendering papers and property to which the client is entitled ... The lawyer may retain
papers relating to the client to the extent permitted by other law only if retaining them would not
prejudice the client's rights." Mr. Randazza did not fail to return any property to Excelsior or
Liberty. He returned the laptop and iPhone. He was otherwise entitled to hold onto this
property under Nevada law. Nevada allows an attorney to hold "a general or retaining lien that
entitles an attorney, if discharged by the client, to retain the client's papers, property or money
until a court, at the request of the client, requires the attorney to deliver the retained items upon
the client's furnishing of payment or security for the attorney's fees." Figliuzzi v. Eighth Judicial
Dist. Court, 11 Nev. 338, 342 (1995). There was a dispute at the time of Mr. Randazza's
termination as to the amount of settlement fees from the Oran litigation to which he was entitled .
He was thus within his rights to hold onto this property until either he was paid, or a court
ordered him to turn over the laptop and iPhone. Instead, Mr. Randazza voluntarily turned over
these items without either condition occurring.

Mr. Randazza did not delete any files or documents to which Excelsior or Liberty was entitled.
The cloud-based service Jungle Disk functioned as the hard drive. He only occasionally kept
working drafts of documents on the laptop's hard drive - and even then, only when there was no
internet connection available. The system otherwise served as a backup and all documents
were produced to his former clients. Compare Pitney Bowes Gov't Sols., Inc. v. United States,
94 Fed. Cl. 1, 9 (2010) (Court agreed with U.S. Dep't of Justice and determined "there is no
longer a question of spoliation because the documents were never in fact destroyed" where
document backups were produced). Thus, by wiping the hard drive Mr. Randazza did not
delete any documents in which Excelsior/Liberty had any interest, and no missing documents or
data has ever been identified.

Related to the corporate data issue is that Mr. Randazza's laptop and iPhone contained
attorney-client privileged information to which Excelsior and Liberty were not entitled. The
Employment Agreement contemplated this scenario, as it allowed incidental or de minimis use
of the corporate laptop and iPhone on outside matters. ER 1.6(e) requires an attorney to "make
reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized
access to, information relating to the representation of a client." In order to comply with his
ethical obligations under this rule, Mr. Randazza had to wipe his company laptop and iPhone;
otherwise, Excelsior would have had access to confidential information belonging to several of
Mr. Randazza's outside clients without their consent. Thus, there was no violation of ER 1.16.

G. Mr. Randazza Did Not Violate ER 3.1

Mr. Randazza is not aware of any allegations that in the course of his representation of
Excelsior or Liberty he ever asserted a position without a good faith basis for doing so. ER 3.1
thus does not seem applicable to Mr. Retzlaff's complaint.

To the extent the State Bar is concerned about positions Mr. Randazza took in the arbitration
proceedings, ER 3.1 does not apply. Mr. Randazza was a party in those proceedings, not an

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January 14, 2019
ROTHGERBER CHRISTIE Page 15

advocate. Mr. Randazza was represented by counsel, and his own conduct in the proceedings
did not implicate ER 3.1.

Even if ER 3.1 applied to Mr. Randazza as a party, he did not violate it. While the Arbitrator
rejected his claims and defenses, he had a good faith basis to assert them . And, in any event,
the State Bar certainly cannot rely on the findings of an IAA that was subsequently found
unenforceable and vacated .

Even if one believes Mr. Randazza was not sexually harassed within the meaning of Title VII,
there is nothing to suggest his claims were frivolous. His contractual and statutory wage claims
fit within the terms of the agreement and the law, and the arbitrator only determined not to
award unpaid fees and severance based on his erroneous (and at the very least reasonably
disputed) conclusion that Mr. Randazza had resigned and was in material breach of the
agreement based on non-existent (again, at least reasonably disputed) conflicts of interest.

Mr. Randazza properly defended himself from all claims. The funds sought by Excelsior/Liberty
were all properly accounted for and paid when due. And despite the conclusions in the IAA,
there was no proof that Mr. Randazza ever committed malpractice or caused harm to
Excelsior/Liberty, let alone in the amount of $275,000. At all relevant times, Mr. Randazza was
represented by experienced counsel who pursued Mr. Randazza's claims and defenses in an
ethical and professional manner. He did not violate ER 3.1.

H. Mr. Randazza Did Not Violate ER 4.1

Although Excelsior and Liberty brought an adversarial proceeding objecting to discharge, their
claims sounding in fraud were dismissed by the Bankruptcy Court. Mr. Randazza has been
open and honest with all tribunals regarding his representation of Excelsior and Liberty.

At one-point, new counsel for Liberty in the Oron matter asserted that Mr. Randazza
misrepresented the fees "incurred" by Liberty in the fee petition. Mr. Randazza characterized
his hourly time expended on Liberty's behalf as a cost "incu rred". Although Liberty was not
directly billed by the hour, Excelsior was required to pay his salary and bear the overall cost of
employing Mr. Randazza , with the hourly rate being a reasonable approximation. The court
rejected Liberty's semantic argument designed to make Mr. Randazza appear dishonest; the
argument was particularly disingenuous given that Liberty simultaneously agreed that it should
be awarded fees for his time at those rates. Fees were awarded by the Court based upon these
submissions and no materially false statement of fact was made in violation of ER 4.1 . Further,
the District of Nevada reviewed this matter in a later hearing, and affirmed that the fee award
was proper, based on the lodestar analysis.

L Mr. Randazza Did Not Violate ERs 8.4(c) and (d)

For the reasons described above and in the attached Exhibits 13 and 22, Mr. Randazza did not
engage in conduct involving dishonesty, fraud, deceit, or misrepresentation. Nor did he engage
in conduct prejudicial to the administration of justice. Notably, the State Bar of Nevada included
an ER 8.4 charge in its Amended Complaint against Mr. Randazza (see Ex. 17, Count 9), but
after two years of litigation, it dropped that claim . No violation of ER 8.4(c) or (d) occurred.

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 Lewis Roca State Bar of Arizona
January 14, 2019
ROTHGERBER CHRISTIE Page 16

VI. Conclusion

Mr. Retzlaff's vexatious grievance should not be given further consideration. All of the issues
raised therein were considered by the State Bar of Nevada. The State Bar of Arizona should
not revisit them or force Mr. Randazza into years more of litigation over matters than have
already been adjudicated and resolved.

Again, please let me know if we have inadvertently neglected to address any issues that the
State Bar wanted Mr. Randazza to address. I would be happy to discuss this matter with you
further if you have any questions or concerns.

r.e~;_
Very truly yours,

Lewis Roca Rothgerber Christie LLP

JW:can
Enclosures

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